[Title 6 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
6
Revised as of January 1, 2009
Domestic Security
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2009
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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Table of Contents
Page
Explanation................................................. v
Title 6:
Chapter I--Department of Homeland Security, Office
of the Secretary 5
Finding Aids:
Table of CFR Titles and Chapters........................ 201
Alphabetical List of Agencies Appearing in the CFR...... 221
List of CFR Sections Affected........................... 231
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 6 CFR 5.1 refers to
title 6, part 5, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2009), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
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CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
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register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2009.
[[Page ix]]
THIS TITLE
Title 6--Domestic Security is composed of one volume. This volume
contains chapter I--Department of Homeland Security, Office of the
Secretary, and Chapter X--Privacy and Civil Liberties Oversight Board.
Chapter I contains the current Freedom of Information Act, Privacy Act
and Classified National Security Information issued by the Department of
Homeland Security. The contents of this volume represent all current
regulations codified under this title of the CFR as of January 1, 2009.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
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TITLE 6--DOMESTIC SECURITY
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Editorial Note: Due to the addition of chapter II at 72 FR 17789, Apr.
10, 2007, title 6 was renamed as Domestic Security, effective May 25,
2007.
Part
chapter i--Department of Homeland Security, Office of the
Secretary................................................. 5
[[Page 3]]
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY
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Part Page
5 Disclosure of records and information....... 5
7 Classified national security information.... 49
9 Restrictions upon lobbying.................. 57
11 Claims...................................... 67
13 Program fraud civil remedies................ 73
15 Enforcement of nondiscrimination on the
basis of disability in programs or
activities conducted by the Department
of Homeland Security.................... 89
17 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 95
21 Nondiscrimination on the basis of race,
color, or national origin in programs or
activities receiving Federal financial
assistance from the Department of
Homeland Security....................... 112
25 Regulations to support anti-terrorism by
fostering effective technologies........ 122
27 Chemical facility anti-terrorism standards.. 138
29 Protected critical infrastructure
information............................. 173
37 Real ID driver's licenses and identification
cards................................... 183
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PART 5_DISCLOSURE OF RECORDS AND INFORMATION--Table of Contents
Subpart A_Freedom of Information Act
Sec.
5.1 General provisions.
5.2 Public reading rooms.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Classified information.
5.8 Business information.
5.9 Appeals.
5.10 Preservation of records.
5.11 Fees.
5.12 Other rights and services.
Subpart B_Privacy Act
5.20 General provisions.
5.21 Requests for access to records.
5.22 Responsibility for responding to requests for access to records.
5.23 Responses to requests for access to records.
5.24 Classified information.
5.25 Appeals.
5.26 Requests for amendment or correction of records.
5.27 Requests for an accounting of record disclosures.
5.28 Preservation of records.
5.29 Fees.
5.30 Notice of court-ordered and emergency disclosures.
5.31 Security of systems of records.
5.32 Contracts for the operation of record systems.
5.33 Use and collection of social security numbers.
5.34 Standards of conduct for administration of the Privacy Act.
5.35 Sanctions and penalties.
5.36 Other rights and services.
Subpart C_Disclosure of Information in Litigation
5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or requests
for official information or action.
5.44 Testimony and production of documents prohibited unless approved by
appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought;
general.
5.46 Procedure when response to demand is required prior to receiving
instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will comply
with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.
Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of
Homeland Security
Appendix B to Part 5--Public Reading Rooms of the Department of Homeland
Security
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy Act
Authority: Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et seq.);
5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also
issued under 5 U.S.C. 552a.
Source: 68 FR 4056, Jan. 27, 2003, unless otherwise noted.
Subpart A_Freedom of Information Act
Sec. 5.1 General provisions.
(a)(1) This subpart A contains the rules that the Department of
Homeland Security (Department) follows in processing requests for
records under the Freedom of Information Act (FOIA) (5 U.S.C. 552).
These rules should be read together with the FOIA, which provides
additional information about access to records maintained by the
Department. Requests made by individuals for records about themselves
under the Privacy Act of 1974 (5 U.S.C. 552a), which are processed under
subpart B of this part, are processed under this subpart also.
Information routinely provided to the public as part of a regular
Department activity (for example, press releases issued by the Assistant
Secretary for Public Affairs may be provided to the public without
following this subpart).
(2) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance under
FOIA, the provisions of this subpart shall apply to each component of
the Department. Departmental components may issue their own guidance
under this subpart pursuant to approval by the Department.
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(b) As used in this subpart, component means each separate bureau,
office, board, division, commission, service, or administration of the
Department.
Sec. 5.2 Public reading rooms.
(a) Records that are required to be maintained by the Department in
a public reading room will be made available electronically at
www.dhs.gov/foia. Each Department component will be responsible for
determining which of the records it generates are required to be made
available and to make those records available either in its own reading
room or in the Department's central reading room. Each component shall
maintain and make available for public inspection and copying a current
subject-matter index of its reading room records. Each index shall be
updated regularly, at least quarterly, with respect to newly included
records.
(b) The Department components maintain public reading rooms or areas
at the locations listed below:
(1) Animal and Plant Health Inspection Service Library, 4700 River
Road, Riverdale, MD 20737-1232;
(2) Plum Island Animal Disease Center, the APHIS address above or,
USDA-ARS, 5601 Sunnyside Avenue, Building 1, Room 2248, Beltsville, MD
20705-5128;
(3) Critical Infrastructure Assurance Office (A former office of the
Bureau of Industry and Security) does not maintain a conventional public
reading room. Records that are required to be in the public reading room
are available electronically at http://www.bis.doc.gov/FOIA/Default.htm;
(4) FIRESTAT (formerly the Integrated Hazard Information System of
the National Oceanic and Atmospheric Administration), NOAA Public
Reference Facility, 1305 East-West Highway (SSMC4), Room 8627, Silver
Spring, MD 20910;
(5) National Communication Service (a former component of the
Defense Information Systems Agency) does not maintain a conventional
public reading room. Records that are required to be in the public
reading room are available electronically at http://disa.mil/gc/foia/
foia.html;
(6) The address for each component and program listed below is: U.S.
Department of Energy; 1000 Independence Avenue, SW., Washington, DC
20585:
(i) Energy Assurance Office;
(ii) Environmental Measurements Laboratory;
(iii) Nuclear Incident Response Team;
(iv) The chemical and biological national security and supporting
programs and activities of the non-proliferation and verification
research and development program;
(v) The life sciences activities related to microbial pathogens of
Biological and Environmental Research Program;
(vi) The nuclear smuggling programs and activities within the
proliferation detection program of the non-proliferation and
verification research and development program;
(vii) The nuclear assessment program and activities of the
assessment, detection, and cooperation program of the international
materials protection and cooperation program, and the advanced
scientific computing research program and activities at Lawrence
Livermore National Laboratory; and
(viii) The National Infrastructure Simulation and Analysis Center;
(7) The address for each component and program listed below is:
Freedom of Information Act Officer at: Department of Health and Human
Services, Freedom of Information Officer, Room 645-F, Hubert H. Humphrey
Building, Independence Avenue, SW., Washington, DC 20201:
(i) Metropolitan Medical Response System;
(ii) National Disaster Medical System;
(8) Office of Emergency Preparedness please contact the Strategic
National Stockpile Centers for Disease Control and Agency for Toxic
Substances and Disease Registry, 1600 Clifton Road, NE., Room 4103,
Building 1, Atlanta, GA 30333;
(9) Immigration and Naturalization Service, 111 Massachusetts
Avenue, NW., 2nd Floor, ULLICO Building, Washington, DC 20536;
(10) For the National Infrastructure Protection Center, the National
Domestic Preparedness Office, and the Domestic Emergency Support Team:
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Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW.,
Department of Justice, Washington, DC 20535-0001;
(11) Office of Domestic Preparedness, U.S. Department of Justice,
Office of Justice Programs, 810 7th Street, NW., Room 5430, Washington,
DC 20531;
(12) Visa Office, Department of State, 2201 C Street, NW.,
Washington, DC 20520;
(13) Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591;
(14) Transportation Security Administration, 400 Seventh Street,
SW., Washington, DC 20590;
(15) United States Coast Guard Headquarters, 2100 Second Street,
SW., Washington, DC 20593-0001 (for district offices, consult your phone
book);
(16) The Federal Law Enforcement Training Center does not maintain a
conventional public reading room. Records that are required to be in the
public reading room are available electronically at http://
www.fletc.gov/irm/foia/readingroom.htm;
(17) U.S. Customs Service, Freedom of Information Request, 1300
Pennsylvania Avenue, NW., Mint Annex, Washington, DC 20229-0001 (for a
list of field office reading room locations please consult 19 CFR
103.1);
(18) U.S. Secret Service, Main Treasury, Freedom of Information
Request, 950 H Street, NW., Suite 3000, Washington, DC;
(19) Federal Emergency Management Agency, Federal Center Plaza, 500
C Street, SW., Room 840, Washington, DC 20472 (for regional offices,
consult your phone book);
(20) For the Federal Computer Incident Response Center and the
Federal Protective Service: Central Office, GSA Headquarters, 1800 F
Street, NW (CAI), Washington, DC 20405 (for regional offices, consult
the phone book);
(c) Components shall also make reading room records created by the
Department on or after November 1, 1996, available electronically via
the component web-site. This includes each component's index of its
reading room records, which will indicate which records are available
electronically.
Sec. 5.3 Requirements for making requests.
(a) How made and addressed. You may make a request for records of
the Department by writing directly to the Department component that
maintains those records. For additional information about the FOIA, you
may refer directly to the statute. If you are making a request for
records about yourself, see Sec. 5.21(d) for additional requirements.
If you are making a request for records about another individual, either
a written authorization signed by that individual permitting disclosure
of those records to you or proof that that individual is deceased (for
example, a copy of a death certificate or an obituary) must be
submitted. Your request should be sent to the component's FOIA office at
the address listed in appendix A to part 5. In most cases, your FOIA
request should be sent to a component's central FOIA office. (The
functions of each component are summarized elsewhere in this title and
in the description of the Department and its components in the ``United
States Government Manual,'' which is issued annually and is available in
most libraries, as well as for sale from the Government Printing
Office's Superintendent of Documents. This manual also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su--docs).) If you
cannot determine where within the Department to send your request, you
may send it to the Departmental Disclosure Officer, Department of
Homeland Security, Washington, DC 20528. That office will forward your
request to the component(s) it believes most likely to have the records
that you want. Your request will be considered received as of the date
it is received by the proper component's FOIA office. For the quickest
possible handling, you should mark both your request letter and the
envelope ``Freedom of Information Act Request.''
(b) Description of records sought. You must describe the records
that you seek in enough detail to enable Department personnel to locate
them with a reasonable amount of effort. Whenever possible, your request
should include
[[Page 8]]
specific information about each record sought, such as the date, title
or name, author, recipient, and subject matter of the record. If known,
you should include any file designations or descriptions for the records
that you want. As a general rule, the more specific you are about the
records or type of records that you want, the more likely the Department
will be able to locate those records in response to your request. If a
component determines that your request does not reasonably describe
records, it shall tell you either what additional information is needed
or why your request is otherwise insufficient. The component also shall
give you an opportunity to discuss your request so that you may modify
it to meet the requirements of this section. If your request does not
reasonably describe the records you seek, the agency's response to your
request may be delayed.
(c) Agreement to pay fees. If you make a FOIA request, it shall be
considered a firm commitment by you to pay all applicable fees charged
under Sec. 5.11 up to $ 25.00, unless you seek a waiver of fees. In
making your FOIA request, please indicate whether you are willing to pay
for the request or desire a waiver. The component responsible for
responding to your request ordinarily will confirm this commitment in an
acknowledgement letter. When making a request, you may specify a
willingness to pay a greater or lesser amount. If you are seeking a
waiver of fees you must provide a justification for your fee waiver
request in accordance with the requirements of Sec. 5.11(k). If your
request for a fee waiver is denied, the component will notify you of
that decision and will request an agreement from you to pay fees up to
$25, or a greater or lesser amount specified by you. Your request shall
not be considered received and further work shall not be done on it
until you agree to pay fees. If you do not provide a firm commitment to
pay the anticipated fee within the time period specified by the
component, the request will be administratively closed.
Sec. 5.4 Responsibility for responding to requests.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for a record
and has possession of that record is the component responsible for
responding to the request. In determining which records are responsive
to a request, a component ordinarily will include only records in its
possession as of the date the component begins its search for them. If
any other date is used, the component shall inform the requester of that
date.
(b) Authority to grant or deny requests. The head of a component, or
the component head's designee, is authorized to grant or deny any
request for a record of that component.
(c) Consultations and referrals. When a component receives a request
for a record in its possession, it shall determine whether another
component, or another agency of the Federal Government, is better able
to determine whether the record is exempt from disclosure under the FOIA
and, if so, whether it should be disclosed as a matter of administrative
discretion. If the receiving component determines that it is best able
to process the record in response to the request, then it shall do so.
If the receiving component determines that it is not best able to
process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether to disclose
it and with any other component or agency that has a substantial
interest in it; or
(2) Refer the responsibility for responding to the request regarding
that record to the component best able to determine whether to disclose
it, or to another agency that originated the record (but only if that
agency is subject to the FOIA). Ordinarily, the component or agency that
originated a record will be presumed to be best able to determine
whether to disclose it.
(d) Law enforcement information. Whenever a request is made for a
record containing information that relates to an investigation of a
possible violation of law and was originated by another component or
agency, the receiving component shall either refer the responsibility
for responding to the request regarding that information to
[[Page 9]]
that other component or agency or consult with that other component or
agency.
(e) Classified information. Whenever a request is made for a record
containing information that has been classified, or may be appropriate
for classification, by another component or agency under Executive Order
12958 or any other executive order concerning the classification of
records, the receiving component shall refer the responsibility for
responding to the request regarding that information to the component or
agency that classified the information, or which should consider the
information for classification, or which has the primary interest in it,
as appropriate. Whenever a record contains information that has been
derivatively classified by a component because it contains information
classified by another component or agency, the component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the underlying information.
(f) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(g) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date the
FOIA request initially was received by the first component or agency,
not any later date.
(h) Agreements regarding consultations and referrals. Components may
make agreements with other components or agencies to eliminate the need
for consultations or referrals for particular types of records.
Sec. 5.5 Timing of responses to requests.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work and/or time needed to process the
request, including through limits based on the number of pages involved.
If a component does so, it shall advise requesters in its slower
track(s) of the limits of its faster track(s).
(2) A component using multitrack processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the component's faster track(s). A component doing so will
contact the requester either by telephone or by letter, whichever is
more efficient in each case.
(c) Unusual circumstances. (1) Where the statutory time limits for
processing a request cannot be met because of ``unusual circumstances,''
as defined in the FOIA, and the component determines to extend the time
limits on that basis, the component shall as soon as practicable notify
the requester in writing of the unusual circumstances and of the date by
which processing of the request can be expected to be completed. Where
the extension is for more than ten working days, the component shall
provide the requester with an opportunity either to modify the request
so that it may be processed within the time limits or to arrange an
alternative time period with the component for processing the request or
a modified request.
(2) Where a component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated. Multiple requests involving unrelated matters will
not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person
[[Page 10]]
primarily engaged in disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. A request for
expedited processing must be submitted to the component that maintains
the record requested. Requests based on the categories in paragraphs
(d)(1)(i), (ii), and (iii) of this section must be submitted to the
component that maintains the records requested.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requester within the category in
paragraph (d)(1)(ii) of this section, if not a full-time member of the
news media, must establish that he or she is a person whose main
professional activity or occupation is information dissemination, though
it need not be his or her sole occupation. A requester within the
category in paragraph (d)(1)(ii) of this section also must establish a
particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about
government activity generally. The formality of certification may be
waived as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the proper component shall decide whether to grant
it and shall notify the requester of the decision. If a request for
expedited treatment is granted, the request shall be given priority and
shall be processed as soon as practicable. If a request for expedited
processing is denied, any appeal of that decision shall be acted on
expeditiously.
Sec. 5.6 Responses to requests.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 5.3(c) and provide an assigned request number for further
reference.
(b) Grants of requests. Ordinarily, a component shall have twenty
business days from when a request is received to determine whether to
grant or deny the request. Once a component makes a determination to
grant a request in whole or in part, it shall notify the requester in
writing. The component shall inform the requester in the notice of any
fee charged under Sec. 5.11 and shall disclose records to the requester
promptly on payment of any applicable fee. Records disclosed in part
shall be marked or annotated to show the amount of information deleted
unless doing so would harm an interest protected by an applicable
exemption. The location of the information deleted also shall be
indicated on the record, if technically feasible.
(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, consist of: A determination to withhold any
requested record in whole or in part; a determination that a requested
record does not exist or cannot be located; a determination that a
record is not readily reproducible in the form or format sought by the
requester; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; and a denial of a
request for expedited processing. The denial letter shall be signed by
the head of the component, or the component head's designee, and shall
include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including any
FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of records or information withheld, in
number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
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(4) A statement that the denial may be appealed under Sec. 5.9(a)
and a description of the requirements of Sec. 5.9(a).
Sec. 5.7 Classified information.
In processing a request for information that is classified under
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other executive
order, the originating component shall review the information to
determine whether it should remain classified. Information determined to
no longer require classification shall not be withheld on the basis of
Exemption 1 of the FOIA. On receipt of any appeal involving classified
information, the Associate General Counsel (General Law) shall take
appropriate action to ensure compliance with Part 7 of this title.
Sec. 5.8 Business information.
(a) In general. Business information obtained by the Department from
a submitter will be disclosed under the FOIA, if otherwise allowable,
only under this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Department from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Department
obtains business information, directly or indirectly. The term includes,
but is not limited to, corporations; state, local, and tribal
governments; and foreign governments.
(c) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period.
(d) Notice to submitters. A component shall provide a submitter with
prompt written notice of a FOIA request or administrative appeal that
seeks its business information wherever required under paragraph (e) of
this section, except as provided in paragraph (h) of this section, in
order to give the submitter an opportunity to object to disclosure of
any specified portion of that information under paragraph (f) of this
section. The notice shall either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish it.
(e) Where notice is required. Notice shall be given to a submitter
wherever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) The component has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. A component will allow a
submitter a reasonable time to respond to the notice described in
paragraph (d) of this section and will specify that time period within
the notice. If a submitter has any objection to disclosure, it is
required to submit a detailed written statement. The statement must
specify all grounds for withholding any portion of the information under
any exemption of the FOIA and, in the case of Exemption 4, it must show
why the information is a trade secret or commercial or financial
information that is privileged or confidential. In the event that a
submitter fails to respond to the notice within the time specified in
it, the submitter will be considered to have no objection to disclosure
of the information. Information provided by the submitter that is not
received by the component until after its disclosure decision has been
made shall not be considered by the component. Information provided by a
submitter under this paragraph may itself be subject to disclosure under
the FOIA.
(g) Notice of intent to disclose. A component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose business information. Whenever a
[[Page 12]]
component decides to disclose business information over the objection of
a submitter, the component shall give the submitter written notice,
which shall include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) The component determines that the information should not be
disclosed pursuant to exemption four and/or any other exemption of the
FOIA;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other than
the FOIA) or by a regulation issued in accordance with the requirements
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous, except that in such a case the
component shall, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final decision
to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the component
shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever a component
provides a submitter with notice and an opportunity to object to
disclosure under paragraph (d) of this section, the component shall also
notify the requester(s). Whenever a component notifies a submitter of
its intent to disclose requested information under paragraph (g) of this
section, the component shall also notify the requester(s). Whenever a
submitter files a lawsuit seeking to prevent the disclosure of business
information, the component shall notify the requester(s).
Sec. 5.9 Appeals.
(a) Appeals of adverse determinations. (1) If you are dissatisfied
with a component's response to your request, you may appeal an adverse
determination denying your request, in any respect, to the Associate
General Counsel (General Law), Department of Homeland Security,
Washington, DC 20528. You must make your appeal in writing and it must
be received by the Associate General Counsel (General Law) within 60
days of the date of the letter denying your request. Your appeal letter
may include as much or as little related information as you wish, as
long as it clearly identifies the component determination (including the
assigned request number, if known) that you are appealing. For the
quickest possible handling, you should mark your appeal letter and the
envelope ``Freedom of Information Act Appeal.''
(2) An adverse determination by the Associate General Counsel
(General Law) will be the final action of the Department; and
(3) An appeal ordinarily will not be acted on if the request becomes
a matter of FOIA litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or in
part shall contain a statement of the reason(s) for the affirmance,
including any FOIA exemption(s) applied, and will inform you of the FOIA
provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal, in whole or in part,
you will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination, you must first appeal it under this
section.
Sec. 5.10 Preservation of records.
Each component shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records
[[Page 13]]
will not be disposed of while they are the subject of a pending request,
appeal, or lawsuit under the FOIA.
Sec. 5.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or where a
waiver or reduction of fees is granted under paragraph (k) of this
section. A component ordinarily shall collect all applicable fees before
sending copies of requested records to a requester. Requesters must pay
fees by check or money order made payable to the Treasury of the United
States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include furthering
those interests through litigation. Components shall determine, whenever
reasonably possible, the use to which a requester will put the requested
records. When it appears that the requester will put the records to a
commercial use, either because of the nature of the request itself or
because a component has reasonable cause to doubt a requester's stated
use, the component shall provide the requester a reasonable opportunity
to submit further clarification.
(2) Direct costs means those expenses that an agency actually incurs
in searching for and duplicating (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include, for example, the salary of the employee performing the work
(the basic rate of pay for the employee, plus 16 percent of that rate to
cover benefits) and the cost of operating duplication machinery. Not
included in direct costs are overhead expenses such as the costs of
space and heating or lighting of the facility in which the records are
kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
Components shall honor a requester's specified preference of form or
format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format by the office
responding to the request.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category, a
requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not
sought for a commercial use but are sought to further scholarly
research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are not sought for a commercial use but are sought to further scientific
research.
(6) Representative of the news media, or news media requester, means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances where they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they must
demonstrate a solid basis for expecting publication through that
organization. A publication contract
[[Page 14]]
would be the clearest proof, but components shall also look to the past
publication record of a requester in making this determination. To be in
this category, a requester must not be seeking the requested records for
a commercial use. However, a request for records supporting the news-
dissemination function of the requester shall not be considered to be
for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt from
disclosure. It also includes processing any record for disclosure (for
example, doing all that is necessary to redact it and prepare it for
disclosure). Review costs are recoverable even if a record ultimately is
not disclosed. Review time includes time spent considering any formal
objection to disclosure made by a business submitter under Sec. 5.8,
but does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Components shall ensure
that searches are done in the most efficient and least expensive manner
reasonably possible. For example, components shall not search line-by-
line where duplicating an entire document would be quicker and less
expensive.
(c) Fees. In responding to FOIA requests, components shall charge
the following fees unless a waiver or reduction of fees has been granted
under paragraph (k) of this section:
(1) Search. (i) Search fees shall be charged for all requests other
than requests made by educational institutions, noncommercial scientific
institutions, or representatives of the news media, subject to the
limitations of paragraph (d) of this section. Components may charge for
time spent searching even if they do not locate any responsive record or
if they withhold the record(s) located as entirely exempt from
disclosure.
(ii) Fees for search time are assessed by the hourly wage of the
personnel filling the request. These fees are subject to change.
Currently, for each quarter hour spent by clerical personnel in
searching for and retrieving a requested record, the fee will be $4.00.
Where a search and retrieval cannot be performed entirely by clerical
personnel (for example, where the identification of records within the
scope of a request requires the use of professional personnel) the fee
will be $7.00 for each quarter hour of search time spent by professional
personnel. Where the time of managerial personnel is required, the fee
will be $10.25 for each quarter hour of time spent by those personnel.
(iii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in paragraph (d)(1) of this section) will be charged no
search fee and certain other requesters (as provided in paragraph (d)(3)
of this section) will be entitled to the cost equivalent of two hours of
manual search time without charge. These direct costs will include the
cost of operating a central processing unit for that portion of
operating time that is directly attributable to searching for responsive
records, as well as the costs of operator/programmer salary
apportionable to the search.
(iv) For requests requiring the retrieval of records from any
Federal Records Center, certain additional costs may be incurred in
accordance with the Transactional Billing Rate Schedule established by
the National Archives and Records Administration, effective October 1,
2002.
(2) Duplication. Duplication fees will be charged to all requesters,
subject to the limitations of paragraph (d) of this section. For a paper
photocopy of a record (no more than one copy of which need be supplied),
the fee will be ten cents per page. For copies produced by computer,
such as tapes or printouts, components will charge the direct costs,
including operator time, of producing the copy. For other forms of
duplication, components will charge the direct costs of that
duplication.
[[Page 15]]
(3) Review. Review fees will be charged to requesters who make a
commercial use request. Review fees will be charged only for the initial
record review (the review done when a component determines whether an
exemption applies to a particular record or record portion at the
initial request level). No charge will be made for review at the
administrative appeal level for an exemption already applied. However,
records or record portions withheld under an exemption that is
subsequently determined not to apply may be reviewed again to determine
whether any other exemption not previously considered applies; the costs
of that review are chargeable where it is made necessary by such a
change of circumstances. Review fees will be charged at the same rates
as those charged for a search under paragraph (c)(1)(ii) of this
section.
(d) Restrictions on charging fees. (1) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(4) No fee will be charged whenever a total fee calculated under
paragraph (c) of this section is less than the agency's cost to process
the check. Currently, whenever a total fee calculated under paragraph
(c) of this section is $14.00 or less for any request, no fee will be
charged.
(5) The provisions of paragraphs (d) (3) and (d)(4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When a component
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, the component shall notify the
requester of the actual or estimated amount of the fees, unless the
requester has indicated a willingness to pay fees as high as those
anticipated. If only a portion of the fee can be estimated readily, the
component shall advise the requester that the estimated fee may be only
a portion of the total fee. In cases in which a requester has been
notified that actual or estimated fees amount to more than $25.00, the
request shall not be considered received and further work shall not be
done on it until the requester makes a firm commitment to pay the
anticipated total fee. Any such agreement should be memorialized by the
requester in writing and must be received by the component within a time
period specified by the component in its notice to the requester. If the
requester does not provide a firm commitment to pay the anticipated fee
within the time period specified by the component, the request will be
administratively closed. A notice under this paragraph will offer the
requester an opportunity to discuss the matter with Department personnel
in order to reformulate the request to meet the requester's needs at a
lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when a component chooses as a matter of administrative
discretion to provide a special service (such as certifying that records
are true copies or sending them by other than ordinary mail) the direct
costs of providing the service ordinarily will be charged.
(g) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the component. Components will follow the provisions of
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
[[Page 16]]
(h) Aggregating requests. Where a component reasonably believes that
a requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the component may aggregate those requests and charge accordingly.
Components may presume that multiple requests of this type made within a
30-day period have been made in order to avoid fees. Where requests are
separated by a longer period, components will aggregate them only where
there exists a solid basis for determining that aggregation is warranted
under all the circumstances involved. Multiple requests involving
unrelated matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) and (3) of this section, a component shall not require
the requester to make an advance payment before work is begun or
continued on a request. Payment owed for work already completed (such as
a prepayment before copies are sent to a requester) is not an advance
payment.
(2) Where a component determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require the
requester to make an advance payment of an amount up to the amount of
the entire anticipated fee before beginning to process the request,
except where it receives a satisfactory assurance of full payment from a
requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 days of the date
of billing, a component may require the requester to pay the full amount
due, plus any applicable interest, and to make an advance payment of the
full amount of any anticipated fee, before the component begins to
process a new request or continues to process a pending request from
that requester.
(4) In cases in which a component requires advance payment, the
request shall not be considered received and further work will not be
done on it until the required payment is received.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. Where records responsive to requests are maintained
for distribution by agencies operating such statutorily based fee
schedule programs, components will inform requesters of the steps for
obtaining records from those sources so that they may do so most
economically.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge or at a charge
reduced below that established under paragraph (c) of this section where
a component determines, based on all available information, that the
requester has demonstrated that:
(i) 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
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
components will consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government.'' The
subject of the requested records must concern identifiable operations or
activities of the federal government, with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether 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 about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
[[Page 17]]
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed that
a representative of the news media will satisfy this consideration.
(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 in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. Components shall not
make value judgments about whether information that would contribute
significantly to public understanding of the operations or activities of
the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
components will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. Components shall consider any commercial interest
of the requester (with reference to the definition of ``commercial use''
in paragraph (b)(1) of this section), or of any person on whose behalf
the requester may be acting, that would be furthered by the requested
disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. Components ordinarily
shall presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily
served by disclosure to that requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return shall not be presumed to primarily serve the public
interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k)(2) and (3) of this section, insofar as
they apply to each request. Components will exercise their discretion to
consider the cost-effectiveness of their investment of administrative
resources in this decisionmaking process, however, in deciding to grant
waivers or reductions of fees.
(l) Payment of outstanding fees. The Department shall not process a
FOIA request from persons with an unpaid fee from any previous FOIA
request to any Federal agency until that outstanding fee has been paid
in full to the agency.
Sec. 5.12 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Subpart B_Privacy Act
Sec. 5.20 General provisions.
(a) Purpose and scope. (1) This subpart contains the rules that the
Department of Homeland Security (Department) follows under the Privacy
Act of 1974 (5 U.S.C. 552a). These rules should be read together with
the Privacy Act, which provides additional information about records
maintained on individuals. The rules in this subpart apply to all
[[Page 18]]
records in systems of records maintained by the Department that are
retrieved by an individual's name or personal identifier. They describe
the procedures by which individuals may request access to records about
themselves, request amendment or correction of those records, and
request an accounting of disclosures of those by the Department. In
addition, the Department processes all Privacy Act requests for access
to records under the Freedom of Information Act (FOIA) ( 5 U.S.C. 552),
following the rules contained in subpart A of this part, which gives
requests the benefit of both statutes.
(2) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance under
the Privacy Act, the provisions of this subpart shall apply to each
component of the Department. Departmental components may issue their own
guidance under this subpart pursuant to approval by the Department.
(b) Definitions. As used in this subpart:
(1) Component means each separate bureau, office, board, division,
commission, service, or administration of the Department.
(2) Request for access to a record means a request made under
Privacy Act subsection (d)(1).
(3) Request for amendment or correction of a record means a request
made under Privacy Act subsection (d)(2).
(4) Request for an accounting means a request made under Privacy Act
subsection (c)(3).
(5) Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act.
(c) Authority to request records for a law enforcement purpose. The
head of a component or designee thereof is authorized to make written
requests under subsection (b)(7) of the Privacy Act for records
maintained by other agencies that are necessary to carry out an
authorized law enforcement activity.
(d) Notice on Departmental use of (b)(1) exemption. As a general
matter, when applying the (b)(1) exemption for disclosures within an
agency on a need to know basis, the Department will consider itself a
single entity, meaning that information may be disclosed between
components of the Department under the (b)(1) exemption.
(e) Interim Retention of Authorities. As an interim solution, all
agencies and components under the Department will retain the necessary
authority from their original purpose in order to conduct these
necessary activities. This includes the authority to maintain Privacy
Act systems of records, disseminate information pursuant to existing or
new routine uses, and retention of exemption authorities under sections
(j) and (k) of the Privacy Act, where applicable. This retention of an
agency or component's authorities and information practices will remain
in effect until this regulation is promulgated as a final rule, or the
Department revises all systems of records notices. This retention of
authority is necessary to allow components to fulfill their mission and
purpose during the transition period of the establishment of the
Department. During this transition period, the Department shall evaluate
with the components the existing authorities and information practices
and determine what revisions (if any) are appropriate and should be made
to these existing authorities and practices. The Department anticipates
that such revisions will be made either through the issuance of a
revised system of records notices or through subsequent final
regulations.
Sec. 5.21 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
Department of Homeland Security record about yourself by appearing in
person or by writing directly to the Department component that maintains
the record. Your request should be sent or delivered to the component's
Privacy Act office at the address listed in appendix A to this part. In
most cases, a component's central Privacy Act office is the place to
send a Privacy Act request. For records held by a field office
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of the U.S. Customs Service, U.S. Secret Service, U.S. Coast Guard, or
any other Department component with field offices, however, you must
write directly to that Customs, Secret Service, Coast Guard, or other
field office address, which can be found in most telephone books or by
calling the component's central Privacy Act office. (The functions of
each component are summarized elsewhere in this title and in the
description of the Department and its components in the ``United States
Government Manual,'' which is issued annually and is available in most
libraries, as well as for sale from the Government Printing Office's
Superintendent of Documents. This manual also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su--docs). Some records
are maintained under a government-wide systems of records notice, for
example, Official Personnel Files are maintained under the authority of
the Office of Personnel Management. In order to access records
maintained under a government-wide notice, please send your request to
the Privacy Act office of the original department or agency from which
the component was transferred to the Department. If you cannot determine
where within the Department to send your request, you may send it to the
Departmental Disclosure Officer, Department of Homeland Security,
Washington, DC 20528, and that office will forward it to the
component(s) it believes most likely to have the records that you seek.
For the quickest possible handling, you should mark both your request
letter and the envelope ``Privacy Act Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable Department personnel to locate
the system of records containing them with a reasonable amount of
effort. Whenever possible, your request should describe the records
sought, the time periods in which you believe they were compiled, and
the name or identifying number of each system of records in which you
believe they are kept. The Department publishes notices in the Federal
Register that describe its components' systems of records. A description
of the Department's systems of records also may be found as part of the
``Privacy Act Compilation'' published by the National Archives and
Records Administration's Office of the Federal Register. This
compilation is available in most large reference and university
libraries. This compilation also can be accessed electronically at the
Government Printing Office's World Wide Web site (which can be found at
http://www.access.gpo.gov/su--docs).
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it shall be considered an agreement by you to pay all
applicable fees charged under Sec. 5.29, up to $25.00. The component
responsible for responding to your request ordinarily shall confirm this
agreement in an acknowledgement letter. When making a request, you may
specify a willingness to pay a greater or lesser amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization. While
no specific form is required, you may obtain forms for this purpose from
the Departmental Disclosure Officer, Department of Homeland Security,
Washington, DC 20528. In order to help the identification and location
of requested records, you may also, at your option, include your social
security number.
(e) Verification of guardianship. When making a request as the
parent or guardian of a minor or as the guardian of someone determined
by a court to be incompetent, for access to records about that
individual, you must establish:
(1) The identity of the individual who is the subject of the record,
by stating the name, current address, date and place of birth, and, at
your option, the social security number of the individual;
(2) Your own identity, as required in paragraph (d) of this section;
[[Page 20]]
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
guardianship; and
(4) That you are acting on behalf of that individual in making the
request.
(f) Verification in the case of third party information requests. If
you are making a request for records concerning an individual on behalf
of that individual, you must provide a statement from the individual
verifying the identity of the individual as provided in paragraph (d) of
this section. You must also provide a statement from the individual
certifying the individual's agreement that records concerning the
individual may be released to you.
Sec. 5.22 Responsibility for responding to requests for access to records.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for access to
a record, and has possession of that record, is the component
responsible for responding to the request. In determining which records
are responsive to a request, a component ordinarily shall include only
those records in its possession as of the date the component begins its
search for them. If any other date is used, the component shall inform
the requester of that date.
(b) Authority to grant or deny requests. The head of a component, or
the component head's designee, is authorized to grant or deny any
request for access or amendment to a record of that component.
(c) Consultations and referrals. When a component receives a request
for access to a record in its possession, it shall determine whether
another component, or another agency of the Federal Government, is
better able to determine whether the record is exempt from access under
the Privacy Act. If the receiving component determines that it is best
able to process the record in response to the request, then it shall do
so. If the receiving component determines that it is not best able to
process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether the record
is exempt from access and with any other component or agency that has a
substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding
that record to the component best able to determine whether it is exempt
from access, or to another agency that originated the record (but only
if that agency is subject to the Privacy Act). Ordinarily, the component
or agency that originated a record will be presumed to be best able to
determine whether it is exempt from access.
(d) Law enforcement information. Whenever a request is made for
access to a record containing information that relates to an
investigation of a possible violation of law and that was originated by
another component or agency, the receiving component shall either refer
the responsibility for responding to the request regarding that
information to that other component or agency or shall consult with that
other component or agency.
(e) Classified information. Whenever a request is made for access to
a record containing information that has been classified by or may be
appropriate for classification by another component or agency under
Executive Order 12958 or any other executive order concerning the
classification of records, the receiving component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the information, should
consider the information for classification, or has the primary interest
in it, as appropriate. Whenever a record contains information that has
been derivatively classified by a component because it contains
information classified by another component or agency, the component
shall refer the responsibility for responding to the request regarding
that information to the component or agency that classified the
underlying information.
(f) Release of Medical Records. Pursuant to 5 U.S.C. 552a(f)(3),
where requests are made for access to medical records, including
psychological
[[Page 21]]
records, the decision to release directly to the individual, or to
withhold direct release, shall be made by a medical practitioner. Where
the medical practitioner has ruled that direct release will cause harm
to the individual who is requesting access, normal release through the
individual's chosen medical practitioner will be recommended. Final
review and decision on appeals of disapprovals of direct release will
rest with the General Counsel.
(g) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(h) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
Privacy Act access request was initially received by the first component
or agency, not any later date.
(i) Agreements regarding consultations and referrals. Components may
make agreements with other components or agencies to eliminate the need
for consultations or referrals for particular types of records.
Sec. 5.23 Responses to requests for access to records.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 5.21(c) and provide an assigned request number for further
reference.
(b) Grants of requests for access. Once a component makes a
determination to grant a request for access in whole or in part, it
shall notify the requester in writing. The component shall inform the
requester in the notice of any fee charged under Sec. 5.29 and shall
disclose records to the requester promptly on payment of any applicable
fee. If a request is made in person, the component may disclose records
to the requester directly, in a manner not unreasonably disruptive of
its operations, on payment of any applicable fee and with a written
record made of the grant of the request. If a requester is accompanied
by another person, the requester shall be required to authorize in
writing any discussion of the records in the presence of the other
person.
(c) Adverse determinations of requests for access. A component
making an adverse determination denying a request for access in any
respect shall notify the requester of that determination in writing.
Adverse determinations, or denials of requests, consist of: a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the Privacy Act; a determination on any disputed fee matter;
and a denial of a request for expedited treatment. The notification
letter shall be signed by the head of the component, or the component
head's designee, and shall include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including any
Privacy Act exemption(s) applied by the component in denying the
request; and
(3) A statement that the denial may be appealed under Sec. 5.25(a)
and a description of the requirements of Sec. 5.25(a).
Sec. 5.24 Classified information.
In processing a request for access to a record containing
information that is classified under Executive Order 12958 or any other
executive order, the originating component shall review the information
to determine whether it should remain classified. Information determined
to no longer require classification shall not be withheld from a
requester on the basis of Exemption (k)(1) of the Privacy Act. On
receipt of any appeal involving classified information, the Associate
General Counsel (General Law), shall take appropriate action to ensure
compliance with Part 7 of this title.
Sec. 5.25 Appeals.
(a) Appeals. If you are dissatisfied with a component's response to
your request for access to records, you may
[[Page 22]]
appeal an adverse determination denying your request in any respect to
the Associate General Counsel (General Law), Department of Homeland
Security, Washington, DC 20528. You must make your appeal in writing and
it must be received by the Associate General Counsel (General Law)
within 60 days of the date of the letter denying your request. Your
appeal letter may include as much or as little related information as
you wish, as long as it clearly identifies the component determination
(including the assigned request number, if known) that you are
appealing. For the quickest possible handling, you should mark both your
appeal letter and the envelope ``Privacy Act Appeal.''
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or in
part will include a brief statement of the reason(s) for the affirmance,
including any Privacy Act exemption applied, and will inform you of the
Privacy Act provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal in whole or in part, you
will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision. An adverse
determination by the Associate General Counsel (General Law) will be the
final action of the Department.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section. An appeal will not be acted on if the
request becomes a matter of litigation.
Sec. 5.26 Requests for amendment or correction of records.
(a) How made and addressed. Unless the record is not subject to
amendment or correction as stated in paragraph (f) of this section, you
may make a request for amendment or correction of a record of the
Department about you by writing directly to the Department component
that maintains the record, following the procedures in Sec. 5.21. Your
request should identify each particular record in question, state the
amendment or correction that you want, and state why you believe that
the record is not accurate, relevant, timely, or complete. You may
submit any documentation that you think would be helpful. If you believe
that the same record is in more than one system of records, you should
state that and address your request to each component that maintains a
system of records containing the record.
(b) Component responses. Within ten working days of receiving your
request for amendment or correction of records, a component shall send
you a written acknowledgment of its receipt of your request, and it
shall promptly notify you whether your request is granted or denied. If
the component grants your request in whole or in part, it shall describe
the amendment or correction made and shall advise you of your right to
obtain a copy of the corrected or amended record, in disclosable form.
If the component denies your request in whole or in part, it shall send
you a letter signed by the head of the component, or the component
head's designee, that shall state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction to the Associate General Counsel (General Law) in the same
manner as a denial of a request for access to records (see Sec. 5.25)
and the same procedures shall be followed. If your appeal is denied, you
shall be advised of your right to file a Statement of Disagreement as
described in paragraph (d) of this section and of your right under the
Privacy Act for court review of the decision.
(d) Statements of Disagreement. If your appeal under this section is
denied in whole or in part, you have the right to file a Statement of
Disagreement that states your reason(s) for disagreeing with the
Department's denial of your request for amendment or correction.
Statements of Disagreement must be concise, must clearly identify each
part of any record that is disputed, and should be no longer than one
typed page for each fact disputed. Your
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Statement of Disagreement must be sent to the component involved, which
shall place it in the system of records in which the disputed record is
maintained and shall mark the disputed record to indicate that a
Statement of Disagreement has been filed and where in the system of
records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
working days of the amendment or correction of a record, the component
that maintains the record shall notify all persons, organizations, or
agencies to which it previously disclosed the record, if an accounting
of that disclosure was made, that the record has been amended or
corrected. If an individual has filed a Statement of Disagreement, the
component shall append a copy of it to the disputed record whenever the
record is disclosed and may also append a concise statement of its
reason(s) for denying the request to amend or correct the record.
(f) Records not subject to amendment or correction. The following
records are not subject to amendment or correction:
(1) Transcripts of testimony given under oath or written statements
made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings, which are the official record of those
proceedings;
(3) Presentence records that originated with the courts; and
(4) Records in systems of records that have been exempted from
amendment and correction under Privacy Act (5 U.S.C. 552a(j) or (k)) by
notice published in the Federal Register.
Sec. 5.27 Requests for an accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the Department to another person, organization, or
agency of any record about you. This accounting contains the date,
nature, and purpose of each disclosure, as well as the name and address
of the person, organization, or agency to which the disclosure was made.
Your request for an accounting should identify each particular record in
question and should be made by writing directly to the Department
component that maintains the record, following the procedures in Sec.
5.21.
(b) Where accountings are not required. Components are not required
to provide accountings to you where they relate to:
(1) Disclosures for which accountings are not required to be kept,
such as disclosures that are made to employees within the agency and
disclosures that are made under the FOIA;
(2) Disclosures made to law enforcement agencies for authorized law
enforcement activities in response to written requests from those law
enforcement agencies specifying the law enforcement activities for which
the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that
have been exempted from accounting requirements.
(c) Appeals. You may appeal a denial of a request for an accounting
to the Associate General Counsel (General Law) in the same manner as a
denial of a request for access to records (see Sec. 5.25) and the same
procedures will be followed.
Sec. 5.28 Preservation of records.
Each component will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the Act.
Sec. 5.29 Fees.
(a) Components shall charge fees for duplication of records under
the Privacy Act in the same way in which they charge duplication fees
under Sec. 5.11.
(b) The Department shall not process a request under the Privacy Act
from persons with an unpaid fee from any previous Privacy Act request to
any
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Federal agency until that outstanding fee has been paid in full to the
agency.
Sec. 5.30 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the component
shall make reasonable efforts to provide notice of this to the
individual. Notice shall be given within a reasonable time after the
component's receipt of the order, except that in a case in which the
order is not a matter of public record, the notice shall be given only
after the order becomes public. This notice shall be mailed to the
individual's last known address and shall contain a copy of the order
and a description of the information disclosed. Notice shall not be
given if disclosure is made from a criminal law enforcement system of
records that has been exempted from the notice requirement.
(b) Emergency disclosures. Upon disclosing a record pertaining to an
individual made under compelling circumstances affecting health or
safety, the component shall notify that individual of the disclosure.
This notice shall be mailed to the individual's last known address and
shall state the nature of the information disclosed; the person,
organization, or agency to which it was disclosed; the date of
disclosure; and the compelling circumstances justifying the disclosure.
Sec. 5.31 Security of systems of records.
(a) In general. Each component shall establish administrative and
physical controls to prevent unauthorized access to its systems of
records, to prevent unauthorized disclosure of records, and to prevent
physical damage to or destruction of records. The stringency of these
controls shall correspond to the sensitivity of the records that the
controls protect. At a minimum, each component's administrative and
physical controls shall ensure that:
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during business
hours to prevent unauthorized persons from having access to them;
(3) Records are inaccessible to unauthorized persons outside of
business hours; and
(4) Records are not disclosed to unauthorized persons or under
unauthorized circumstances in either oral or written form.
(b) Procedures required. Each component shall have procedures that
restrict access to records to only those individuals within the
Department who must have access to those records in order to perform
their duties and that prevent inadvertent disclosure of records.
Sec. 5.32 Contracts for the operation of record systems.
Under 5 U.S.C. 552a(m), any approved contract for the operation of a
record system will contain the standard contract requirements issued by
the General Services Administration to ensure compliance with the
requirements of the Privacy Act for that record system. The contracting
component will be responsible for ensuring that the contractor complies
with these contract requirements.
Sec. 5.33 Use and collection of social security numbers.
Each component shall ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their social security
numbers, unless the collection is authorized either by a statute or by a
regulation issued prior to 1975; and
(b) That individuals requested to provide their social security
numbers must be informed of:
(1) Whether providing social security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of social security numbers; and
(3) The uses that will be made of the numbers.
Sec. 5.34 Standards of conduct for administration of the Privacy Act.
Each component will inform its employees of the provisions of the
Privacy Act, including the Act's civil liability and criminal penalty
provisions. Unless
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otherwise permitted by law, the Department shall:
(a) Collect from individuals only the information that is relevant
and necessary to discharge the responsibilities of the Department;
(b) Collect information about an individual directly from that
individual whenever practicable and when the information may result in
adverse determinations about an individual's rights, benefits, and
privileges under federal programs;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether
providing it is mandatory or voluntary;
(2) The principal purpose for which the Department intends to use
the information;
(3) The routine uses the Department may make of the information; and
(4) The effects on the individual, if any, of not providing the
information;
(d) Ensure that the component maintains no system of records without
public notice and that it notifies appropriate Department officials of
the existence or development of any system of records that is not the
subject of a current or planned public notice;
(e) Maintain all records that are used by the Department in making
any determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to ensure
fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the
FOIA, make reasonable efforts, prior to disseminating any record about
an individual, to ensure that the record is accurate, relevant, timely,
and complete;
(g) Maintain no record describing how an individual exercises his or
her First Amendment rights, unless it is expressly authorized by statute
or by the individual about whom the record is maintained, or is
pertinent to and within the scope of an authorized law enforcement
activity;
(h) When required by the Privacy Act, maintain an accounting in the
specified form of all disclosures of records by the Department to
persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized
or inadvertent disclosure of a record to anyone.
Sec. 5.35 Sanctions and penalties.
Under the provisions of the Privacy Act, 5 U.S.C. 552a, civil and
criminal penalties may be assessed.
Sec. 5.36 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the Privacy Act.
Subpart C_Disclosure of Information in Litigation
Source: 68 FR 4070, Jan. 27, 2003, unless otherwise noted.
Sec. 5.41 Purpose and scope; definitions.
(a) This subpart C sets forth the procedures to be followed with
respect to:
(1) Service of summonses and complaints or other requests or demands
directed to the Department of Homeland Security (Department) or to any
Department employee or former employee in connection with federal or
state litigation arising out of or involving the performance of official
activities of the Department; and
(2) The oral or written disclosure, in response to subpoenas,
orders, or other requests or demands of federal or state judicial or
quasi-judicial or administrative authority as well as state legislative
authorities (collectively, ``demands''), whether civil or criminal in
nature, or in response to requests for depositions, affidavits,
admissions, responses to interrogatories, document production,
interviews, or other litigation-related matters, including pursuant to
the Federal Rules of Civil Procedure, the Federal Rules of Criminal
Procedure, or applicable state rules (collectively, ``requests''), of
any material contained in the files of the Department, any information
relating to material contained in the files of the Department, or any
information acquired while the subject of the demand or request is or
was employed by the Department, or served as Secretary of
[[Page 26]]
the Department, as part of the performance of that person's duties or by
virtue of that person's official status.
(b) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance
governing the subject matter of a provision of this subpart, the
provisions of this subpart shall apply to each component of the
Department. Departmental components may issue their own guidance under
this subpart subject to the approval of the General Counsel of the
Department.
(c) For purposes of this subpart, and except as the Department may
otherwise determine in a particular case, the term employee includes all
former Secretaries of Homeland Security and all employees of the
Department of Homeland Security or other federal agencies who are or
were appointed by, or subject to the supervision, jurisdiction, or
control of the Secretary of Homeland Security, whether residing or
working in the United States or abroad, including United States
nationals, foreign nationals, and contractors. The procedures
established within this subpart also apply to former employees of the
Department where specifically noted.
(d) For purposes of this subpart, the term litigation encompasses
all pre-trial, trial, and post-trial stages of all judicial or
administrative actions, hearings, investigations, or similar proceedings
before courts, commissions, boards (including the Board of Appellate
Review), grand juries, or other judicial or quasi-judicial bodies or
tribunals, whether criminal, civil, or administrative in nature. This
subpart governs, inter alia, responses to discovery requests,
depositions, and other pre-trial, trial, or post-trial proceedings, as
well as responses to informal requests by attorneys or others in
situations involving litigation. However, this subpart shall not apply
to any claims against the Department by Department of Homeland Security
employees (present or former), or applicants for Department employment,
for which jurisdiction resides with the U.S. Equal Employment
Opportunity Commission; the U.S. Merit Systems Protection Board; the
Office of Special Counsel; the Federal Labor Relations Authority; the
Foreign Service Labor Relations Board; the Foreign Service Grievance
Board; or a labor arbitrator operating under a collective bargaining
agreement between the Department and a labor organization representing
Department employees; or their successor agencies or entities.
(e) For purposes of this subpart, official information means all
information of any kind, however stored, that is in the custody and
control of the Department, relates to information in the custody and
control of the Department, or was acquired by Department employees, or
former employees, as part of their official duties or because of their
official status within the Department while such individuals were
employed by or served on behalf of the Department.
(f) Nothing in this subpart affects disclosure of information under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5
U.S.C. 552a, Executive Order 12958 on national security information (3
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C.
552b, the Department's implementing regulations or pursuant to
congressional subpoena. Nothing in this subpart permits disclosure of
information by the Department, its present and former employees, or the
Secretary, that is protected or prohibited by statute or other
applicable law.
(g) This subpart is intended only to inform the public about
Department procedures concerning the service of process and responses to
demands or requests and is not intended to and does not create, and may
not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Department or the
United States.
(h) Nothing in this subpart affects the rules and procedures, under
applicable U.S. law and international conventions, governing diplomatic
and consular immunity.
(i) Nothing in this subpart affects the disclosure of official
information to other federal agencies or Department of Justice attorneys
in connection with litigation conducted on behalf or in defense of the
United States, its agencies,
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officers, and employees, or litigation in which the United States has an
interest; or to federal, state, local, or foreign prosecuting and law
enforcement authorities in conjunction with criminal law enforcement
investigations, prosecutions, or other proceedings, e.g., extradition,
deportation.
Sec. 5.42 Service of summonses and complaints.
(a) Only the Office of the General Counsel is authorized to receive
and accept on behalf of the Department summonses or complaints sought to
be served upon the Department, the Secretary, or Department employees.
All such documents should be delivered or addressed to the Office of the
General Counsel, United States Department of Homeland Security,
Washington, DC, 20258. The authorization for receipt shall in no way
affect the requirements of service elsewhere provided in applicable
rules and regulations.
(b) In the event any summons or complaint described in Sec. 5.41(a)
is delivered to an employee of the Department other than in the manner
specified in this part, the recipient thereof shall decline to accept
the proffered service and may notify the person attempting to make
service of the Departmental regulations set forth herein.
(c) Except as otherwise provided Sec. Sec. 5.42(d) and 5.43(c), the
Department is not an authorized agent for service of process with
respect to civil litigation against Department employees purely in their
personal, non-official capacity. Copies of summonses or complaints
directed to Department employees in connection with legal proceedings
arising out of the performance of official duties may, however, be
served upon the Office of the General Counsel.
(d) Although the Department is not an agent for the service of
process upon its employees with respect to purely personal, non-official
litigation, the Department recognizes that its employees should not use
their official positions to evade their personal obligations and will,
therefore, counsel and encourage Department employees to accept service
of process in appropriate cases.
(e) Documents for which the Office of the General Counsel accepts
service in official capacity only shall be stamped ``Service Accepted in
Official Capacity Only''. Acceptance of service shall not constitute an
admission or waiver with respect to jurisdiction, propriety of service,
improper venue, or any other defense in law or equity available under
applicable laws or rules.
Sec. 5.43 Service of subpoenas, court orders, and other demands or requests for official information or action.
(a) Except in cases in which the Department is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the Office of the General Counsel is
authorized to receive and accept subpoenas, or other demands or requests
directed to the Secretary, the Department, or any component thereof, or
its employees, whether civil or criminal in nature, for:
(1) Material, including documents, contained in the files of the
Department;
(2) Information, including testimony, affidavits, declarations,
admissions, responses to interrogatories, or informal statements,
relating to material contained in the files of the Department or which
any Department employee acquired in the course and scope of the
performance of his official duties;
(3) Garnishment or attachment of compensation of current or former
employees; or
(4) The performance or non-performance of any official Department
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Department employee other than in the manner
prescribed in paragraph (a) of this section, such employee shall, after
consultation with the Office of the General Counsel, decline service and
direct the server of process to the Departmental regulations. If the
subpoena, demand, or other request is nonetheless delivered to the
employee, the employee shall immediately forward a copy of that document
to the Office of the General Counsel.
(c) Except as otherwise provided in this subpart, the Department is
not an
[[Page 28]]
agent for service, or otherwise authorized to accept on behalf of its
employees, any subpoenas, show-cause orders, or similar compulsory
process of federal or state courts, or requests from private individuals
or attorneys, which are not related to the employees' official duties
except upon the express, written authorization of the individual
Department employee to whom such demand or request is directed.
(d) Acceptance of such documents by the Office of the General
Counsel does not constitute a waiver of any defenses that might
otherwise exist with respect to service under the Federal Rules of Civil
or Criminal Procedure or other applicable rules.
(e) Copies of any subpoenas, show cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, directed to former employees of the Department
in connection with legal proceedings arising out of the performance of
official duties shall also be served upon the Office of the General
Counsel. The Department shall not, however, serve as an agent for
service for the former employee, nor is the Department otherwise
authorized to accept service on behalf of its former employees. If the
demand involves their official duties, former employees who receive
subpoenas, show cause orders, or similar compulsory process of federal
or state courts should also notify in the component of the Department in
which they were employed if the service involves their official duties
while so employed.
(f) If the subpoena, demand, or other request is nonetheless
delivered to the employee, the employee shall immediately forward a copy
of that document to the Office of the General Counsel.
Sec. 5.44 Testimony and production of documents prohibited unless approved by appropriate Department officials.
(a) No employee, or former employee, of the Department shall, in
response to a demand or request, including in connection with any
litigation, provide oral or written testimony by deposition,
declaration, affidavit, or otherwise concerning any information acquired
while such person is or was an employee of the Department as part of the
performance of that person's official duties or by virtue of that
person's official status, unless authorized to do so by the Office of
the General Counsel, or as authorized in Sec. 5.44(b).
(b) No employee, or former employee, shall, in response to a demand
or request, including in connection with any litigation, produce any
document or any material acquired as part of the performance of that
employee's duties or by virtue of that employee's official status,
unless authorized to do so by the Office of the General Counsel or the
delegates thereof, as appropriate.
Sec. 5.45 Procedure when testimony or production of documents is sought; general.
(a) If official information is sought, through testimony or
otherwise, by a request or demand, the party seeking such release or
testimony must (except as otherwise required by federal law or
authorized by the Office of the General Counsel) set forth in writing,
and with as much specificity as possible, the nature and relevance of
the official information sought. Where documents or other materials are
sought, the party should provide a description using the types of
identifying information suggested in Sec. 5.3(b). Subject to Sec.
5.47, Department employees may only produce, disclose, release, comment
upon, or testify concerning those matters which were specified in
writing and properly approved by the appropriate Department official
designated in Sec. 5.44. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951). The Office of the General Counsel may waive the
requirement of this subsection in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Department
may also require from the party seeking such testimony or documents a
plan of all reasonably foreseeable demands, including but not limited to
the names of all employees and former employees from whom discovery will
be sought, areas of inquiry, expected duration of proceedings requiring
oral testimony, and identification of potentially relevant documents.
[[Page 29]]
(c) The appropriate Department official designated in Sec. 5.42
will notify the Department employee and such other persons as
circumstances may warrant of its decision regarding compliance with the
request or demand.
(d) The Office of the General Counsel will consult with the
Department of Justice regarding legal representation for Department
employees in appropriate cases.
Sec. 5.46 Procedure when response to demand is required prior to receiving instructions.
(a) If a response to a demand is required before the appropriate
Department official designated in Sec. 5.44 renders a decision, the
Department, if necessary, will request that the Department of Justice or
the appropriate Department attorney take appropriate steps to stay,
postpone, or obtain relief from the demand pending decision. If
necessary, the attorney will:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this subpart;
(3) Inform the court or other authority that the demand has been, or
is being, as the case may be, referred for the prompt consideration of
the appropriate Department official; and
(4) Respectfully request the court or authority to stay the demand
pending receipt of the requested instructions.
(b) In the event that an immediate demand for production or
disclosure is made in circumstances which would preclude the proper
designation or appearance of a Department of Justice or appropriate
Department attorney on the employee's behalf, the employee, if
necessary, shall respectfully request from the demanding court or
authority for a reasonable stay of proceedings for the purpose of
obtaining instructions from the Department.
Sec. 5.47 Procedure in the event of an adverse ruling.
If a stay of, or other relief from, the effect of the demand in
response to a request made pursuant to Sec. 5.46 is declined or not
obtained, or if the court or other judicial or quasi-judicial authority
declines to stay the effect of the demand in response to a request made
pursuant to Sec. 5.46, or if the court or other authority rules that
the demand must be complied with irrespective of the Department's
instructions not to produce the material or disclose the information
sought, the employee upon whom the demand has been made shall
respectfully decline to comply with the demand, citing this subpart and
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 5.48 Considerations in determining whether the Department will comply with a demand or request
(a) In deciding whether to comply with a demand or request,
Department officials and attorneys shall consider, among any other
pertinent considerations:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant substantive
law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Department employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
(6) The need to maintain impartiality between private litigants in
cases where a substantial government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Department of its mission and duties; and
(8) The need to avoid involving the Department in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which compliance
will not ordinarily be authorized are those with respect to which any of
the following factors, inter alia, exist:
(1) Compliance would violate a statute or a rule of procedure;
(2) Compliance would violate a specific regulation or Executive
order;
[[Page 30]]
(3) Compliance would reveal information properly classified in the
interest of national security;
(4) Compliance would reveal confidential commercial or financial
information or trade secrets without the owner's consent;
(5) Compliance would reveal the internal deliberative processes of
the Executive Branch; or
(6) Compliance would potentially impede or prejudice an on-going law
enforcement investigation.
Sec. 5.49 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR
2635.805, Department employees shall not provide opinion or expert
testimony based upon information which they acquired in the scope and
performance of their official Department duties, except on behalf of the
United States or a party represented by the Department of Justice.
(b) Any expert or opinion testimony by a former employee of the
Department shall be excepted from 5.49(a) where the testimony involves
only general expertise gained while employed at the Department.
(c) Upon a showing by the requestor of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the appropriate Department official
designated in Sec. 5.44 may, consistent with 5 CFR 2635.805, in their
discretion and with the concurrence of the Office of the General
Counsel, grant special, written authorization for Department employees,
or former employees, to appear and testify as expert witnesses at no
expense to the United States.
(d) If, despite the final determination of the appropriate
Department official designated in Sec. 5.44, a court of competent
jurisdiction or other appropriate authority orders the appearance and
expert or opinion testimony of a current or former Department employee,
that person shall immediately inform the Office of the General Counsel
of such order. If the Office of the General Counsel determines that no
further legal review of or challenge to the court's order will be made,
the Department employee, or former employee, shall comply with the
order. If so directed by the Office of the General Counsel, however, the
employee, or former employee, shall respectfully decline to testify.
Sec. Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of
Homeland Security
I. For the following Headquarters components of the Department of
Homeland Security, FOIA and Privacy Act requests should be sent to the
Departmental Disclosure Office, Department of Homeland Security,
Washington, DC 20528. The Headquarters components are:
A
Office of the Secretary
Office of the Deputy Secretary
Office of the Under Secretary for Management
B
Office of the General Counsel
Office of the Inspector General
Office of International Affairs
Office of Legislative Affairs
Office of Public Affairs
Office of National Capital Region Coordination
Office of Professional Responsibility
Office for State and Local Government Coordination
C
Directorate of Border and Transportation Security
Directorate of Emergency Preparedness and Response
Directorate of Information Analysis and Infrastructure Protection
Directorate of Science and Technology
II. Requests made to components that have transferred or will
transfer into the Department of Homeland Security, should be sent as
follows:
A. Former components of the Department of Agriculture:
1. Animal and Plant Health Inspection Service, USDA, APHIS, LPA, FOIA,
4700 River Road, Unit 50, Riverdale, MD 20737-1232
2. Plum Island Animal Disease Center; Submit request to the APHIS
address above or, FOIA Coordinator, USDA-REE-ARS-Information Staff, 5601
Sunnyside Avenue, Bldg. 1, Room 2248, Mail Stop 5128, Beltsville, MD
20705-5128
B. Former components of the Department of Commerce:
1. Critical Infrastructure Assurance Office (A former office of the
Bureau of Industry and Security); Freedom of Information Coordinator,
Bureau of Industry and Security,
[[Page 31]]
Room 6883, U.S. Department of Commerce, Washington, DC 20230
2. FIRESTAT (formerly the Integrated Hazard Information System of the
National Oceanic and Atmospheric Administration), National Oceanic and
Atmospheric Administration, Public Reference Facility (OFAx2), 1315
East-West Highway (SSMC3), Room 10703, Silver Spring, MD 20910
C. Former components of the Department of Defense:
1. National Communications Service (A former component of the Defense
Information Systems Agency), Defense Information Systems Agency, ATTN:
RGC/FOIA Officer, 701 S. Courthouse Rd., Arlington, VA 22204-2199
D. Former components and programs of the Department of Energy:
The address for each component and program listed below is: U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585
1. Energy Assurance Office
2. Environmental Measurements Laboratory
3. Nuclear Incident Response Team
4. The chemical and biological national security and supporting
programs and activities of the non-proliferation and verification
research and development program.
5. The life sciences activities related to microbial pathogens of
Biological and Environmental Research Program.
6. The nuclear smuggling programs and activities within the
proliferation detection program of the non-proliferation and
verification research and development program.
7. The nuclear assessment program and activities of the assessment,
detection, and cooperation program of the international materials
protection and cooperation program, and the advanced scientific
computing research program and activities at Lawrence Livermore National
Laboratory.
8. National Infrastructure Simulation and Analysis Center
E. Former components of the Department of Health and Human Services:
1. The address for each component and program listed below is:
Department of Health and Human Services, Freedom of Information Officer,
Room 645-F, Hubert H. Humphrey Building, Independence Avenue, SW.,
Washington, DC 20201;
a. Metropolitan Medical Response System,
b. National Disaster Medical System, and
c. Office of Emergency Preparedness
d. Strategic National Stockpile
2. Centers for Disease Control and Agency for Toxic Substances and
Disease Registry, Attn: FOI Office, MS-D54, 1600 Clifton Road, NE.,
Atlanta, GA 30333.
F. Former components of the Department of Justice:
1. Immigration and Naturalization Service, Director, Freedom of
Information/Privacy Act Program, Department of Justice, 425 Eye Street,
NW., 2nd Floor, ULLICO Building, Washington, DC 20536 (for field
offices, consult your phone book).
2. The address for each component and program listed below is:
Federal Bureau of Investigation, Chief, FOIPA Section, 935 Pennsylvania
Avenue, NW., Department of Justice, Washington, DC 20535-0001;
a. National Infrastructure Protection Center,
b. National Domestic Preparedness Office, and
c. Domestic Emergency Support Team.
3. Office of Domestic Preparedness, U.S. Department of Justice,
Office of Justice Programs, Office of the General Counsel, Attention:
FOIA Staff, 810 7th Street, NW., Room 5400, Washington, DC 20531.
G. Former components of the Department of State:
Visa Office, Information and Privacy Coordinator, Office of Information
Resources, Management Programs and Services, A/RPS/IPS, SA-2, Department
of State, Washington, DC 20522-6001, Re: Freedom of Information Act
Request.
H. Former components of the Department of Transportation:
1. Federal Aviation Administration, National Freedom of Information Act
Staff, ARC-40, 800 Independence Avenue, SW., Washington, DC 20591 (for
regional centers, consult your phone book).
2. Transportation Security Administration, TSA-1, FOIA Division, 400
Seventh Street, SW., Washington, DC 20590
3. United States Coast Guard, HQ USCG Commandant, G-CIM, 2100 Second
Street, SW., Washington, DC 20593-0001 (for district offices, consult
your phone book).
I. Former components of the Department of Treasury:
1. Federal Law Enforcement Training Center, Freedom of Information Act
Officer, Townhouse 389, Glynco, GA 31524
2. U.S. Customs Service, Freedom of Information Act Request, Mint Annex,
1300 Pennsylvania Avenue, NW., Washington, DC 20229 (for field offices,
consult your phone book).
3. U.S. Secret Service, Freedom of Information Act Request, 950 H
Street, NW., Suite 3000, Washington, DC 20223, e-mail
[email protected]. Appeals should be addressed to the Deputy Director,
United States Secret Service, Freedom of Information and Privacy Act
Appeal Officer, at these same contact points.
J. Federal Emergency Management Agency: Federal Emergency Management
Agency, Office of General Counsel, 500 C Street, SW., Room 840,
Washington, DC 20472 (for regional offices, consult your phone book).
[[Page 32]]
K. Former components of the General Services Administration:
1. For the Federal Computer Incident Response Center and the Federal
Protective Service: Chief, FOIA Information Management Branch, GSA
(CAIM), 1800 F Street, NW., Washington, DC 20405 (for regional offices,
consult your phone book).
Sec. Appendix B to Part 5--Public Reading Rooms of the Department of
Homeland Security
The Headquarters components of the Department of Homeland Security
do not maintain a conventional public reading room. Records that are
required to be in the public reading room are available electronically
at http://www.dhs.gov/FOIA.
Entities that will transfer into the Department of Homeland Security
maintain public reading rooms as follows:
1. Former components of the Department of Agriculture:
Animal and Plant Health Inspection Service Library, 4700 River Road,
Riverdale, MD 20737-1232
Plum Island Animal Disease Center, the APHIS address above or, USDA-ARS,
5601 Sunnyside Avenue, Building 1, Room 2248, Beltsville, MD 20705-5128
2. Former components of the Department of Commerce:
The Critical Infrastructure Assurance Office (A former office of the
Bureau of Industry and Security) does not maintain a conventional public
reading room. Records that are required to be in the public reading room
are available electronically at http://www.bis.doc.gov/FOIA/Default.htm
FIRESTAT (formerly the Integrated Hazard Information System of the
National Oceanic and Atmospheric Administration), NOAA Public Reference
Facility, 1305 East-West Highway (SSMC4), Room 8627, Silver Spring, MD
20910
3. Former components of the Department of Defense:
The National Communication Service (A former component of the
Defense Information Systems Agency) does not maintain a conventional
public reading room. Records that are required to be in the public
reading room are available electronically at http://disa.mil/gc/foia/
foia.html
4. Former components and programs of the Department of Energy:
The address for each component and program listed below is: U.S.
Department of Energy; 1000 Independence Avenue, SW., Washington, DC
20585
Energy Assurance Office
Environmental Measurements Laboratory
Nuclear Incident Response Team
The chemical and biological national security and supporting
programs and activities of the non-proliferation and verification
research and development program.
The life sciences activities related to microbial pathogens of
Biological and Environmental Research Program.
The nuclear smuggling programs and activities within the
proliferation detection program of the non-proliferation and
verification research and development program.
The nuclear assessment program and activities of the assessment,
detection, and cooperation program of the international materials
protection and cooperation program, and the advanced scientific
computing research program and activities at Lawrence Livermore National
Laboratory.
The National Infrastructure Simulation and Analysis Center
5. Former components of the Department of Health and Human Services:
For the Metropolitan Medical Response System, the National Disaster
Medical System, and the Office of Emergency Preparedness please contact
the Freedom of Information Act Officer at: Department of Health and
Human Services, Freedom of Information Officer, Room 645-F, Hubert H.
Humphrey Building, Independence Avenue, SW., Washington, DC 20201
Strategic National Stockpile, Centers for Disease Control and Agency
for Toxic Substances and Disease Registry, 1600 Clifton Road, NE., Room
4103, Building 1, Atlanta, GA 30333
6. Former components of the Department of Justice:
Immigration and Naturalization Service, 111 Massachusetts Avenue,
NW., 2nd Floor, ULLICO Building, Washington, DC 20536
For the National Infrastructure Protection Center, the National
Domestic Preparedness Office, and the Domestic Emergency Support Team:
Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW.,
Department of Justice, Washington, DC 20535-0001
Office of Domestic Preparedness, U.S. Department of Justice, Office
of Justice Programs, 810 7th Street, NW., Room 5430, Washington, DC
20531
7. Former components of the Department of State:
Visa Office, Department of State, 2201 C Street, NW., Washington, DC
20520
8. Former components of the Department of Transportation:
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591
Transportation Security Administration, 400 Seventh Street, SW.,
Washington, DC 20590
United States Coast Guard Headquarters, 2100 Second Street, SW.,
Washington, DC
[[Page 33]]
20593-0001 (for district offices, consult your phone book).
9. Former components of the Department of Treasury:
The Federal Law Enforcement Training Center does not maintain a
conventional public reading room. Records that are required to be in the
public reading room are available electronically at http://
www.fletc.gov/irm/foia/readingroom.htm
U.S. Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC
20229 (for a list of field office public reading rooms please consult 19
CFR 103.1).
U.S. Secret Service, Main Treasury, 1500 Pennsylvania Avenue, NW.,
Washington, DC 20220
10. Federal Emergency Management Agency:
Federal Emergency Management Agency, Federal Center Plaza, 500 C
Street, SW., Room 840 Washington, DC 20472 (for regional offices,
consult your phone book)
11. Former components of the General Services Administration:
For the Federal Computer Incident Response Center and the Federal
Protective Service: Central Office, GSA Headquarters, 1800 F Street,
NW., (CAI), Washington, DC 20405 (for regional offices, consult your
phone book).
Sec. Appendix C to Part 5--DHS Systems of Records Exempt From the
Privacy Act
This appendix implements provisions of the Privacy Act of 1974 that
permit the Department of Homeland Security (DHS) to exempt its systems
of records from provisions of the Act. During the course of normal
agency operations, exempt materials from other systems of records may
become part of the records in these and other DHS systems. To the extent
that copies of records from other exempt systems of records are entered
into any DHS system, DHS hereby claims the same exemptions for those
records that are claimed for the original primary systems of records
from which they originated and claims any additional exemptions in
accordance with this rule.
Portions of the following DHS systems of records are exempt from
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and
(k):
1. DHS/ALL 001, Department of Homeland Security (DHS) Freedom of
Information Act (FOIA) and Privacy Act (PA) Record System allows the DHS
and its components to maintain and retrieve FOIA and Privacy Act files
by personal identifiers associated with the persons submitting requests
for information under each statute. Pursuant to exemptions (j)(2),
(k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this system
are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I)
and (f). Exemptions from the particular subsections are justified, on a
case by case basis to be determined at the time a request is made, for
the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation to the existence of the investigation and reveal investigative
interest on the part of DHS as well as the recipient agency. Disclosure
of the accounting would therefore present a serious impediment to law
enforcement efforts and/or efforts to preserve national security.
Disclosure of the accounting would also permit the individual who is the
subject of a record to impede the investigation and avoid detection or
apprehension, which undermines the entire system.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation of an actual or potential criminal, civil, or
regulatory violation to the existence of the investigation and reveal
investigative interest on the part of DHS or another agency. Access to
the records would permit the individual who is the subject of a record
to impede the investigation and avoid detection or apprehension.
Amendment of the records would interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated.
The information contained in the system may also include properly
classified information, the release of which would pose a threat to
national defense and/or foreign policy. In addition, permitting access
and amendment to such information also could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal law, the accuracy of information obtained or introduced,
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective enforcement of federal laws, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because portions of this system are exempt from
the access provisions of subsection (d).
2. DHS-CRCL-001, Civil Rights and Civil Liberties Matters, which
will cover allegations of abuses of civil rights and civil liberties
that are submitted to the Office of CRCL. Pursuant to exemptions (k)(1),
(k)(2) and (k)(5) of the Privacy Act, portions of this system are exempt
from 5 U.S.C. 552a(c)(3);
[[Page 34]]
(d); (e)(1); (e)(4)(G), (H) and (I) and (f). Exemptions from the
particular subsections are justified, on a case by case basis to be
determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation to the existence of the investigation and reveal investigative
interest on the part of DHS or another agency. Disclosure of the
accounting would therefore present a serious impediment to law
enforcement efforts and efforts to preserve national security.
Disclosure of the accounting would also permit the individual who is the
subject of a record to impede the investigation and avoid detection or
apprehension, which undermines the entire system.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation of an actual or potential criminal, civil, or
regulatory violation to the existence of the investigation and reveal
investigative interest on the part of DHS as well as the recipient
agency. Access to the records would permit the individual who is the
subject of a record to impede the investigation and avoid detection or
apprehension. Amendment of the records would interfere with ongoing
investigations and law enforcement activities and impose an impossible
administrative burden by requiring investigations to be continuously
reinvestigated. The information contained in the system may also include
properly classified information, the release of which would pose a
threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information also could disclose
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal law, the accuracy of information obtained or introduced,
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective enforcement of federal laws, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
3. DHS-ALL-005, Redress and Response Records System. A portion of
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I),
(5), and (8); (f), and (g); however, these exemptions apply only to the
extent that information in this system records is recompiled or is
created from information contained in other systems of records subject
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and
(k)(5). Further, no exemption shall be asserted with respect to
information submitted by and collected from the individual or the
individual's representative in the course of any redress process
associated with this system of records. After conferring with the
appropriate component or agency, DHS may waive applicable exemptions in
appropriate circumstances and where it would not appear to interfere
with or adversely affect the law enforcement or national security
purposes of the systems from which the information is recompiled or in
which it is contained. Exemptions from the above particular subsections
are justified, on a case-by-case basis to be determined at the time a
request is made, when information in this system records is recompiled
or is created from information contained in other systems of records
subject to exemptions for the following reasons:
(a) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him or her
would specifically reveal any investigative interest in the individual.
Revealing this information could reasonably be expected to compromise
ongoing efforts to investigate a known or suspected terrorist by
notifying the record subject that he or she is under investigation. This
information could also permit the record subject to take measures to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid or impede the investigation.
(b) From subsection (c)(4) because portions of this system are
exempt from the access and amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of certain records
contained in this system, including law enforcement counterterrorism,
investigatory, and intelligence records. Compliance with these
provisions could alert the subject of an investigation of the fact and
nature of the investigation, and/or the investigative interest of
intelligence or law enforcement agencies; compromise sensitive
information related to national security; interfere with the overall law
enforcement process by leading to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of the
subject; could
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identify a confidential source or disclose information which would
constitute an unwarranted invasion of another's personal privacy; reveal
a sensitive investigative or intelligence technique; or constitute a
potential danger to the health or safety of law enforcement personnel,
confidential informants, and witnesses. Amendment of these records would
interfere with ongoing counterterrorism, law enforcement, or
intelligence investigations and analysis activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised.
(d) From subsection (e)(1) because it is not always possible for DHS
or other agencies to know in advance what information is relevant and
necessary for it to complete an identity comparison between the
individual seeking redress and a known or suspected terrorist. Also,
because DHS and other agencies may not always know what information
about an encounter with a known or suspected terrorist will be relevant
to law enforcement for the purpose of conducting an operational
response.
(e) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism, law enforcement,
or intelligence efforts in that it would put the subject of an
investigation, study, or analysis on notice of that fact, thereby
permitting the subject to engage in conduct designed to frustrate or
impede that activity. The nature of counterterrorism, law enforcement,
or intelligence investigations is such that vital information about an
individual frequently can be obtained only from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(f) From subsection (e)(3), to the extent that this subsection is
interpreted to require DHS to provide notice to an individual if DHS or
another agency receives or collects information about that individual
during an investigation or from a third party. Should the subsection be
so interpreted, exemption from this provision is necessary to avoid
impeding counterterrorism, law enforcement, or intelligence efforts by
putting the subject of an investigation, study, or analysis on notice of
that fact, thereby permitting the subject to engage in conduct intended
to frustrate or impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements)
because portions of this system are exempt from the access and amendment
provisions of subsection (d).
(h) From subsection (e)(5) because many of the records in this
system coming from other system of records are derived from other
domestic and foreign agency record systems and therefore it is not
possible for DHS to vouch for their compliance with this provision;
however, the DHS has implemented internal quality assurance procedures
to ensure that data used in the redress process is as thorough,
accurate, and current as possible. In addition, in the collection of
information for law enforcement, counterterrorism, and intelligence
purposes, it is impossible to determine in advance what information is
accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. The
restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts. The DHS has, however, implemented internal
quality assurance procedures to ensure that the data used in the redress
process is as thorough, accurate, and current as possible.
(i) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on DHS and other agencies and could
alert the subjects of counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously
known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
(k) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
4. The Department of Homeland Security Automated Biometric
Identification System (IDENT) consists of electronic and paper records
and will be used by DHS and its components. IDENT is the primary
repository of biometric information held by DHS in connection with its
several and varied missions and functions, including, but not limited
to: The enforcement of civil and criminal laws (including the
immigration law); investigations, inquiries, and proceedings thereunder;
and national security and intelligence activities. IDENT is a
centralized and dynamic DHS-wide biometric database that also contains
limited biographic and encounter history information needed to place the
biometric information in proper context. The information is collected
by, on behalf of, in support of, or in cooperation with DHS and its
components and may contain personally identifiable information collected
by other Federal, State, local, tribal, foreign, or international
government agencies.
Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
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(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a(k)(2), this
system is exempt from the following provisions of the Privacy Act,
subject to the limitations set forth in those subsections: 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), and (e)(4)(H). Exemptions from these
particular subsections are justified, on a case-by-case basis to be
determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the subject
of an investigation of an actual or potential criminal, civil, or
regulatory violation to the existence of the investigation; and reveal
investigative interest on the part of DHS as well as the recipient
agency. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the accounting would also permit the
individual who is the subject of a record to impede the investigation,
to tamper with witnesses or evidence, and to avoid detection or
apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation of an actual or potential criminal, civil, or
regulatory violation, to the existence of the investigation, and reveal
investigative interest on the part of DHS or another agency. Access to
the records could permit the individual who is the subject of a record
to impede the investigation, to tamper with witnesses or evidence, and
to avoid detection or apprehension. Amendment of the records could
interfere with ongoing investigations and law enforcement activities and
would impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
Federal law, the accuracy of information obtained or introduced
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject to the nature or
existence of an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), and
(f)(2 through 5) (Agency Rules) because portions of this system are
exempt from the individual access provisions of subsection (d) and
thereby would not require DHS to establish requirements or rules for
records which are exempted from access.
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with (e)(5) would preclude
DHS agents from using their investigative training and exercise of good
judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and issue
subpoenas, warrants, and other law enforcement mechanisms that may be
filed under seal, and could result in disclosure of investigative
techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
5. DHS-OIG-2005-002, the Office of Inspector General Investigative
Records System includes both paper investigative files and the
``Investigation Data Management System'' (IDMS)--an electronic case
management and tracking information system, which also generates
reports. The Investigative Records System consists of records and
information collected and maintained to receive and process allegations
of violations of criminal, civil, and administrative laws and
regulations relating to DHS programs, operations, and employees, as well
as contractors and other individuals and entities associated with the
DHS. The system allows the DHS Office of Inspector General to monitor
case assignments, disposition, status, and results; manage
investigations and information provided during the course of such
investigations; track actions taken by management regarding misconduct;
track legal actions taken following referrals to the United States
Department of Justice for prosecution or litigation; provide information
relating to any adverse action or other proceeding that may occur as a
result of the findings of an investigation; retrieve investigation
results; provide a system for creating and reporting
[[Page 37]]
statistical information; and to provide a system to track Office of
Inspector General investigators' firearms qualification records and
property records. Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the
Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3)
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and
(e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a (k)(1), (k)(2) and
(k)(5), this system is exempt from the following provisions of the
Privacy Act, subject to the limitations set forth in those subsections:
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
Exemptions from these particular subsections are justified, on a case-
by-case basis to be determined at the time a request is made, for the
following reasons:
(a) From subsection (c)(3) and (c)(4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the subject
of an investigation of an actual or potential criminal, civil, or
regulatory violation, to the existence of the investigation; and reveal
investigative interest on the part of DHS as well as the recipient
agency. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the accounting would also permit the
individual who is the subject of a record to impede the investigation,
tamper with witnesses or evidence, and avoid detection or apprehension,
which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation of an actual or potential criminal, civil, or
regulatory violation, to the existence of the investigation, and reveal
investigative interest on the part of DHS or another agency. Access to
the records could permit the individual who is the subject of a record
to impede the investigation, tamper with witnesses or evidence, and
avoid detection or apprehension. Amendment of the records could
interfere with ongoing investigations and law enforcement activities and
would impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal law, the accuracy of information obtained or introduced
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject as to the nature or
existence of an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f)
(Agency Rules), and (g) (Civil Remedies) because portions of this system
are exempt from the individual access provisions of subsection (d).
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with (e)(5) would preclude
OIG special agents from using their investigative training and exercise
of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8)(Notice on Individuals) because compliance
would interfere with OIG's ability to obtain, serve, and issue
subpoenas, warrants and other law enforcement mechanisms that may be
filed under seal, and could result in disclosure of investigative
techniques, procedures, and evidence.
6. The Immigration and Customs Enforcement (ICE) Pattern Analysis
and Information Collection (ICEPIC) System consists of electronic and
paper records and will be used by DHS and its components. ICEPIC is a
repository of information held by DHS in connection with its several and
varied missions and functions, including, but not limited to: The
enforcement of civil and criminal laws (including the immigration law);
investigations, inquiries, and proceedings there under; and national
security and intelligence activities. ICEPIC contains information that
is collected by, on behalf of, in support of, or in cooperation with DHS
and its components and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt
from the following provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d),
(e)(1),
[[Page 38]]
(e)(4)(G), (e)(4)(H), and (f). Exemptions from these particular
subsections are justified, on a case-by-case basis to be determined at
the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the subject
of an investigation of an actual or potential criminal, civil, or
regulatory violation to the existence of the investigation, and reveal
investigative interest on the part of DHS as well as the recipient
agency. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the accounting would also permit the
individual who is the subject of a record to impede the investigation,
to tamper with witnesses or evidence, and to avoid detection or
apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation of an actual or potential criminal, civil, or
regulatory violation, to the existence of the investigation, and reveal
investigative interest on the part of DHS or another agency. Access to
the records could permit the individual who is the subject of a record
to impede the investigation, to tamper with witnesses or evidence, and
to avoid detection or apprehension. Amendment of the records could
interfere with ongoing investigations and law enforcement activities and
would impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
Federal law, the accuracy of information obtained or introduced
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject to the nature or
existence of an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), and
(f) (Agency Rules) because portions of this system are exempt from the
individual access provisions of subsection (d) for the reasons noted
above, and therefore DHS is not required to establish requirements,
rules, or procedures with respect to such access. Providing notice to
individuals with respect to existence of records pertaining to them in
the system of records or otherwise setting up procedures pursuant to
which individuals may access and view records pertaining to themselves
in the system would undermine investigative efforts and reveal the
identities of witnesses, and potential witnesses, and confidential
informants.
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with (e)(5) would preclude
DHS agents from using their investigative training and exercise of good
judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and issue
subpoenas, warrants, and other law enforcement mechanisms that may be
filed under seal, and could result in disclosure of investigative
techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; Refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
[[Page 39]]
7. The Office of Intelligence and Analysis (I&A) Enterprise Records
System (ERS) consists of records including intelligence information and
other properly acquired information received from agencies and
components of the federal government, foreign governments, organizations
or entities, international organizations, state and local government
agencies (including law enforcement agencies), and private sector
entities, as well as information provided by individuals, regardless of
the medium used to submit the information or the agency to which it was
submitted. This system also contains: Information regarding persons on
watch lists with known or suspected links to terrorism; the results of
intelligence analysis and reporting; ongoing law enforcement
investigative information, information systems security analysis and
reporting; active immigration, customs, border and transportation,
security related records; historical law enforcement, operational,
immigration, customs, border and transportation security, and other
administrative records; relevant and appropriately acquired financial
information; and public-source data such as that contained in media
reports and commercially available databases, as appropriate. Data about
the providers of information, including the means of transmission of the
data, is also retained.
(a) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this system
of records is exempt from 5 U.S.C. 552a(c)(3), (d)(1), (2), (3), (4),
and (5), (e)(1), (e)(4)(G), (H), and (I), and (f). These exemptions
apply only to the extent that information in this system is subject to
exemption. Where compliance would not appear to interfere with or
adversely affect the intelligence, counterterrorism, homeland security,
and related law enforcement purposes of this system, the applicable
exemption may be waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any interest in the
individual of an intelligence, counterterrorism, homeland security, or
related investigative nature. Revealing this information could
reasonably be expected to compromise ongoing efforts of the Department
to identify, understand, analyze, investigate, and counter the
activities of:
(i) Known or suspected terrorists and terrorist groups;
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to respond to
natural and manmade major disasters and emergencies, including acts of
terrorism; (10) activities involving the importation, possession,
storage, development, or transportation of nuclear or radiological
material without authorization or for use against the United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest
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on the part of DHS, or other agencies with whom DHS is cooperating and
to whom the disclosures were made, this information could permit the
record subject to take measures to impede or evade such efforts,
including the taking of steps to deceive DHS personnel and deny them the
ability to adequately assess relevant information and activities, and
could inappropriately disclose to the record subject the sensitive
methods and/or confidential sources used to acquire the relevant
information against him/her. Moreover, where the record subject is the
actual target of a law enforcement investigation, this information could
permit him/her to take measures to impede the investigation, for
example, by destroying evidence, intimidating potential witnesses, or
avoiding detection or apprehension.
(2) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could also compromise sensitive
information either classified in the interest of national security, or
which otherwise requires, as appropriate, safeguarding and protection
from unauthorized disclosure; identify a confidential source or disclose
information which would constitute an unwarranted invasion of another
individual's personal privacy; reveal a sensitive intelligence or
investigative technique or method, including interfering with
intelligence or law enforcement investigative processes by permitting
the destruction of evidence, improper influencing or intimidation of
witnesses, fabrication of statements or testimony, and flight from
detection or apprehension; or constitute a potential danger to the
health or safety of intelligence, counterterrorism, homeland security,
and law enforcement personnel, confidential sources and informants, and
potential witnesses. Amendment of the records would interfere with
ongoing intelligence, counterterrorism, homeland security, and law
enforcement investigations and activities, including incident reporting
and analysis activities, and impose an impossible administrative burden
by requiring investigations, reports, and analyses to be continuously
reinvestigated and revised.
(3) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the ERS in accordance with the relevant and
necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and I&A are
otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the ERS may be
less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published ERS routine uses. Moreover, it should be noted that, as
concerns the receipt by I&A, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by I&A pursuant to that
Executive Order. Specifically, I&A intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from ERS, as appropriate, only when it is determined
that the personally identifying information is necessary for the conduct
of I&A's functions, and otherwise falls into one of a limited number of
authorized categories, each of which reflects discrete activities for
which information on individuals would be utilized by the Department in
the overall execution of its statutory mission.
(4) From subsections (e)(4) (G), (H) and (I) (Access), and (f)
(Agency Rules), inasmuch as
[[Page 41]]
it is unnecessary for the publication of rules and procedures
contemplated therein since the ERS, pursuant to subsections (1) and (2),
above, will be exempt from the underlying duties to provide to
individuals notification about, access to, and the ability to amend or
correct the information pertaining to them in, this system of records.
Furthermore, to the extent that subsection (e)(4)(I) is construed to
require more detailed disclosure than the information accompanying the
system notice for ERS, as published in today's Federal Register,
exemption from it is also necessary to protect the confidentiality,
privacy, and physical safety of sources of information, as well as the
methods for acquiring it. Finally, greater specificity concerning the
description of categories of sources of properly classified records
could also compromise or otherwise cause damage to the national or
homeland security.
8. The information in MAGNET establishes Maritime Domain Awareness.
Maritime Domain Awareness is the collection of as much information as
possible about the maritime world. In other words, MAGNET establishes a
full awareness of the entities (people, places, things) and their
activities within the maritime industry. MAGNET collects the information
and connects the information in order to fulfill this need.
Coast Guard Intelligence (through MAGNET) will provide awareness to
the field as well as to strategic planners by aggregating data from
existing sources internal and external to the Coast Guard or DHS. MAGNET
will correlate and provide the medium to display information such as
ship registry, current ship position, crew background, passenger lists,
port history, cargo, known criminal vessels, and suspect lists. Coast
Guard Intelligence (CG-2) will serve as MAGNET's executive agent and
will share appropriate aggregated data to other law enforcement and
intelligence agencies.
(a) Pursuant to 5 U.S.C. 522a(j)(2), (k)(1), and (k)(2) this system
of records is exempt from 5 U.S.C. 552a(c)(3) and (4), (d)(1), (d)(2),
(d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4) (G), (H), and (I), e(5),
e(8), e(12), (f), and (g). These exemptions apply only to the extent
that information in this system is subject to exemption. Where
compliance would not appear to interfere with or adversely affect the
intelligence, counterterrorism, homeland security, and related law
enforcement purposes of this system, the applicable exemption may be
waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting of Certain Disclosures)
because making available to a record subject the accounting of
disclosures from records concerning him/her would specifically reveal
any interest in the individual of an intelligence, counterterrorism,
homeland security, law enforcement or related investigative nature.
Revealing this information could reasonably be expected to compromise
ongoing efforts of the Department to identify, understand, analyze,
investigate, and counter the activities of:
(i) Known or suspected terrorists and terrorist groups;
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to
[[Page 42]]
respond to natural and manmade major disasters and emergencies,
including acts of terrorism; (10) activities involving the importation,
possession, storage, development, or transportation of nuclear or
radiological material without authorization or for use against the
United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest on the part of DHS, or other agencies with whom
DHS is cooperating and to whom the disclosures were made, this
information could permit the record subject to take measures to impede
or evade such efforts, including the taking of steps to deceive DHS
personnel and deny them the ability to adequately assess relevant
information and activities, and could inappropriately disclose to the
record subject the sensitive methods and/or confidential sources used to
acquire the relevant information against him/her. Moreover, where the
record subject is the actual target of a law enforcement investigation,
this information could permit him/her to take measures to impede the
investigation, for example, by destroying evidence, intimidating
potential witnesses, or avoiding detection or apprehension.
(2) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because certain records in this system are exempt from the
access and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation of
dispute that the agency made with regard to those records, should not
apply.
(3) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could also compromise sensitive
information either classified in the interest of national security, or
which otherwise requires, as appropriate, safeguarding and protection
from unauthorized disclosure; identify a confidential source or disclose
information which would constitute an unwarranted invasion of another
individual's personal privacy; reveal a sensitive intelligence or
investigative technique or method, including interfering with
intelligence or law enforcement investigative processes by permitting
the destruction of evidence, improper influencing or intimidation of
witnesses, fabrication of statements or testimony, and flight from
detection or apprehension; or constitute a potential danger to the
health or safety of intelligence, counterterrorism, homeland security,
and law enforcement personnel, confidential sources and informants, and
potential witnesses. Amendment of the records would interfere with
ongoing intelligence, counterterrorism, homeland security, and law
enforcement investigations and activities, including incident reporting
and analysis activities, and impose an impossible administrative burden
by requiring investigations, reports, and analyses to be continuously
reinvestigated and revised.
(4) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the MAGNET in accordance with the relevant
and necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and MAGNET
are otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the MAGNET may
be less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published MAGNET routine uses. Moreover, it should be noted that, as
[[Page 43]]
concerns the receipt by USCG, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by USCG pursuant to that
Executive Order. Specifically, USCG intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from MAGNET, as appropriate, only when it is
determined that the personally identifying information is necessary for
the conduct of USCG's functions, and otherwise falls into one of a
limited number of authorized categories, each of which reflects discrete
activities for which information on individuals would be utilized by the
Department in the overall execution of its statutory mission.
(5) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or law enforcement efforts in
that it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
designed to frustrate or impede that activity. The nature of
counterterrorism and law enforcement investigations is such that vital
information about an individual frequently can be obtained only from
other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely solely
upon information furnished by the individual concerning his own
activities.
(6) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism or law enforcement
efforts by putting the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
intended to frustrate or impede that activity.
(7) From subsections (e)(4) (G), (H) and (I) (Access), and (f)
(Agency Rules), inasmuch as it is unnecessary for the publication of
rules and procedures contemplated therein since the MAGNET, pursuant to
subsections (3), above, will be exempt from the underlying duties to
provide to individuals notification about, access to, and the ability to
amend or correct the information pertaining to them in, this system of
records. Furthermore, to the extent that subsection (e)(4)(I) is
construed to require more detailed disclosure than the information
accompanying the system notice for MAGNET, as published in today's
Federal Register, exemption from it is also necessary to protect the
confidentiality, privacy, and physical safety of sources of information,
as well as the methods for acquiring it. Finally, greater specificity
concerning the description of categories of sources of properly
classified records could also compromise or otherwise cause damage to
the national or homeland security.
(8) From subsection (e)(5) (Collection of Information) because many
of the records in this system coming from other system of records are
derived from other domestic and foreign agency record systems and
therefore it is not possible for DHS to vouch for their compliance with
this provision; however, the DHS has implemented internal quality
assurance procedures to ensure that data used in its screening processes
is as complete, accurate, and current as possible. In addition, in the
collection of information for law enforcement and counterterrorism
purposes, it is impossible to determine in advance what information is
accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. The
restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts.
(9) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations then not
previously known.
(10) From subsection (e)(12) (Matching Agreements) because requiring
DHS to provide notice of alterations to existing matching agreements
would impair DHS operations by indicating which data elements and
information are valuable to DHS's analytical functions, thereby
providing harmful disclosure of information to individuals who would
seek to circumvent or interfere with DHS's missions.
(11) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
9. The Law Enforcement Information Data Base (LEIDB)/Pathfinder is a
historical repository of selected Coast Guard message traffic. LEIDB/
Pathfinder supports law enforcement intelligence activities. LEIDB/
Pathfinder users can query archived message traffic and link relevant
information across multiple data records within LEIDB/Pathfinder. Users
have system tools enabling the
[[Page 44]]
user to identify potential relationships between information contained
in otherwise unrelated documents. These tools allow the analysts to
build high precision and low return queries, which minimize false hits
and maximize analyst productivity while working with unstructured,
unformatted, free test documents.
(a) Pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2) certain
records or information in the above mentioned system of records are
exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4);
(e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f), and (g).
These exemptions apply only to the extent that information in this
system is subject to exemption. Where compliance would not appear to
interfere with or adversely affect the intelligence, counterterrorism,
homeland security, and related law enforcement purposes of this system,
the applicable exemption may be waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any interest in the
individual of an intelligence, counterterrorism, homeland security, or
related investigative nature. Revealing this information could
reasonably be expected to compromise ongoing efforts of the Department
to identify, understand, analyze, investigate, and counter the
activities of:
(i) Known or suspected terrorists and terrorist groups;
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to respond to
natural and manmade major disasters and emergencies, including acts of
terrorism; (10) activities involving the importation, possession,
storage, development, or transportation of nuclear or radiological
material without authorization or for use against the United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest on the part of DHS, or other agencies with whom
DHS is cooperating and to whom the disclosures were made, this
information could permit the record subject to take measures to impede
or evade such efforts, including the taking of steps to deceive DHS
personnel and deny them the ability to adequately assess relevant
information and activities, and could inappropriately disclose to the
record subject the sensitive methods and/or confidential sources used to
acquire the relevant information against him/her. Moreover, where the
record subject is the actual target of a law enforcement investigation,
this information could permit him/her to take measures to impede the
investigation, for example, by destroying evidence, intimidating
potential witnesses, or avoiding detection or apprehension.
(2) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because certain records in this system are exempt from the
[[Page 45]]
access and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation of
dispute that the agency made with regard to those records, should not
apply.
(3) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could also compromise sensitive
information either classified in the interest of national security, or
which otherwise requires, as appropriate, safeguarding and protection
from unauthorized disclosure; identify a confidential source or disclose
information which would constitute an unwarranted invasion of another
individual's personal privacy; reveal a sensitive intelligence or
investigative technique or method, including interfering with
intelligence or law enforcement investigative processes by permitting
the destruction of evidence, improper influencing or intimidation of
witnesses, fabrication of statements or testimony, and flight from
detection or apprehension; or constitute a potential danger to the
health or safety of intelligence, counterterrorism, homeland security,
and law enforcement personnel, confidential sources and informants, and
potential witnesses. Amendment of the records would interfere with
ongoing intelligence, counterterrorism, homeland security, and law
enforcement investigations and activities, including incident reporting
and analysis activities, and impose an impossible administrative burden
by requiring investigations, reports, and analyses to be continuously
reinvestigated and revised.
(4) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the LEIDB in accordance with the relevant
and necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and USCG are
otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the LEIDB may
be less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published LEIDB routine uses. Moreover, it should be noted that, as
concerns the receipt by USCG, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by USCG pursuant to that
Executive Order. Specifically, USCG intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from LEIDB, as appropriate, only when it is determined
that the personally identifying information is necessary for the conduct
of USCG's functions, and otherwise falls into one of a limited number of
authorized categories, each of which reflects discrete activities for
which information on individuals would be utilized by the Department in
the overall execution of its statutory mission.
(5) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or law enforcement efforts in
that it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
designed to frustrate or impede that activity. The nature of
counterterrorism, and law enforcement investigations is such that vital
information
[[Page 46]]
about an individual frequently can be obtained only from other persons
who are familiar with such individual and his/her activities. In such
investigations it is not feasible to rely solely upon information
furnished by the individual concerning his own activities.
(6) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism or law enforcement
efforts by putting the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
intended to frustrate or impede that activity.
(7) From subsections (e)(4) (G), (H) and (I) (Access), inasmuch as
it is unnecessary for the publication of rules and procedures
contemplated therein since the LEIDB, pursuant to subsections (2) and
(3), above, will be exempt from the underlying duties to provide to
individuals notification about, access to, and the ability to amend or
correct the information pertaining to them in, this system of records.
Furthermore, to the extent that subsection (e)(4)(I) is construed to
require more detailed disclosure than the information accompanying the
system notice for LEIDB, as published in today's Federal Register,
exemption from it is also necessary to protect the confidentiality,
privacy, and physical safety of sources of information, as well as the
methods for acquiring it. Finally, greater specificity concerning the
description of categories of sources of properly classified records
could also compromise or otherwise cause damage to the national or
homeland security.
(8) From subsection (e)(5) (Collection of Information) because many
of the records contained in this system are derived from other domestic
and foreign sources, it is not possible for DHS to vouch for those
records' compliance with this provision; however, the DHS has
implemented internal quality assurance procedures to ensure that data
used in its screening processes is as complete, accurate, and current as
possible. In addition, in the collection of information for law
enforcement and counterterrorism purposes, it is impossible to determine
in advance what information is accurate, relevant, timely, and complete.
With the passage of time, seemingly irrelevant or untimely information
may acquire new significance as further investigation brings new details
to light. The restrictions imposed by (e)(5) would limit the ability of
those agencies' trained investigators and intelligence analysts to
exercise their judgment in conducting investigations and impede the
development of intelligence necessary for effective law enforcement and
counterterrorism efforts.
(9) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations then not
previously known.
(10) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d). Access to, and amendment of, system records that are not exempt or
for which exemption is waived may be obtained under procedures described
in the related SORN or Subpart B of this Part.
(11) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in the
system. Therefore DHS is not required to establish rules or procedures
pursuant to which individuals may seek a civil remedy for the agency's:
Refusal to amend a record; refusal to comply with a request for access
to records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
10. DHS-ICE-001, The Immigration and Customs Enforcement (ICE)
Student and Exchange Visitor Information System (SEVIS) collects and
maintains pertinent information on nonimmigrant students and exchange
visitors and the schools and exchange visitor program sponsors that host
them while in the United States. The system permits DHS to monitor
compliance by these individuals with the terms of their admission into
the United States. Pursuant to exemptions (j)(2), (k)(1), (k)(2) and
(k)(5) of the Privacy Act, portions of this system are exempt from 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I). Exemptions from
the particular subsections are justified, on a case by case basis, to be
determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation, of an actual or potential criminal, civil, or regulatory
violation to the existence of the investigation and reveal investigative
interest on the part of DHS as well as the recipient agency. Disclosure
of the accounting would therefore present a serious impediment to law
enforcement efforts and/or efforts to preserve national security.
Disclosure of the accounting would also permit the individual who is the
subject of a record to impede the investigation and avoid detection or
apprehension, which undermines the entire system.
[[Page 47]]
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation, of an actual or potential criminal, civil, or
regulatory violation to the existence of the investigation and reveal
investigative interest on the part of DHS or another agency. Access to
the records could permit the individual who is the subject of a record
to impede the investigation and avoid detection or apprehension.
Amendment of the records could interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated. In
addition, permitting access and amendment to such information also could
disclose security-sensitive information that could be detrimental to
homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal law, the accuracy of information obtained or introduced
occasionally may be unclear or the information may not be strictly
relevant or necessary to a specific investigation. In the interests of
effective enforcement of federal laws, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because portions of this system are exempt from
the access provisions of subsection (d).
11. The General Counsel Electronic Management System (GEMS) consists
of records and information created or collected by attorneys for U.S.
Immigration and Customs Enforcement, which will be used in the
preparation and presentation of cases before a court or other
adjudicative body. ICE attorneys work closely with ICE law enforcement
personnel throughout the process of adjudicating immigration cases. GEMS
allows ICE attorneys to store all the materials pertaining to
immigration adjudications, including documents related to
investigations, case notes and other hearing related information, and
briefs and memoranda of law related to cases. Having this information in
one system should not only facilitate the work of the ICE attorneys
involved in the particular case, but also will provide a legal resource
for other attorneys who are adjudicating similar cases. The system will
also provide management capabilities for tracking time and effort
expended in the preparation and presentation of cases. Pursuant to
exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this
system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f)(2) through (5); and
(g). Pursuant to 5 U.S.C. 552a (k)(1) and (k)(2), this system is exempt
from the following provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), and (f). Exemptions from these particular
subsections are justified, on a case-by-case basis to be determined at
the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation, to the existence of the investigation, which in some cases
may be classified, and reveal investigative interest on the part of DHS
or ICE. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the accounting would also permit the
individual who is the subject of a record to impede the investigation,
tamper with witnesses or evidence, and avoid detection or apprehension,
which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation pertaining to an immigration matter, which in some
cases may be classified, and prematurely reveal investigative interest
on the part of DHS or another agency. Access to the records could permit
the individual who is the subject of a record to impede the
investigation, tamper with witnesses or evidence, and avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal immigration law, the accuracy of information obtained or
introduced occasionally may be unclear or the information may not be
strictly relevant or necessary to a specific investigation. In the
interests of effective law enforcement and for the protection of
national security, it is appropriate to retain all information that may
aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject of the nature or
existence of an investigation, which could cause interference with the
investigation, a related inquiry or
[[Page 48]]
other law enforcement activities, some of which may be classified.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f)
(Agency Rules), and (g) (Civil Remedies) because portions of this system
are exempt from the individual access provisions of subsection (d).
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with ICE's ability to obtain, serve, and
issue subpoenas, warrants and other law enforcement mechanisms that may
be filed under seal, and could result in disclosure of investigative
techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
12. DHS/CBP-005, Advanced Passenger Information System. A portion of
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I),
(5), and (8); (f), and (g); however, these exemptions apply only to the
extent that information in this system records is recompiled or is
created from information contained in other systems of records subject
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), and (k)(2). Further,
no exemption shall be asserted with respect to information submitted by
and collected from the individual or the individual's representative in
the course of any redress process associated with this system of
records. After conferring with the appropriate component or agency, DHS
may waive applicable exemptions in appropriate circumstances and where
it would not appear to interfere with or adversely affect the law
enforcement or national security purposes of the systems from which the
information is recompiled or in which it is contained. Exemptions from
the above particular subsections are justified, on a case-by-case basis
to be determined at the time a request is made, when information in this
system records is recompiled or is created from information contained in
other systems of records subject to exemptions for the following
reasons:
(a) From subsection (c)(3) (Accounting for Disclosure) because
making available to a record subject the accounting of disclosures from
records concerning him or her would specifically reveal any
investigative interest in the individual. Revealing this information
could reasonably be expected to compromise ongoing efforts to
investigate a known or suspected terrorist by notifying the record
subject that he or she is under investigation. This information could
also permit the record subject to take measures to impede the
investigation, e.g., destroy evidence, intimidate potential witnesses,
or flee the area to avoid or impede the investigation.
(b) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because portions of this system are exempt from the access and
amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual access to and amendment of
certain records contained in this system, including law enforcement
counterterrorism, investigatory, and intelligence records. Compliance
with these provisions could alert the subject of an investigation of the
fact and nature of the investigation, and/or the investigative interest
of intelligence or law enforcement agencies; compromise sensitive
information related to national security; interfere with the overall law
enforcement process by leading to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of the
subject; could identify a confidential source or disclose information
which would constitute an unwarranted invasion of another's personal
privacy; reveal a sensitive investigative or intelligence technique; or
constitute a potential danger to the health or safety of law enforcement
personnel, confidential informants, and witnesses. Amendment of these
records would interfere with ongoing counterterrorism, law enforcement,
or intelligence investigations and analysis activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised.
(d) From subsection (e)(1) (Relevancy and Necessity of Information)
because it is not always possible for DHS or other agencies to know in
advance what information is relevant and necessary for it to complete an
identity comparison between the individual seeking redress and a known
or suspected terrorist. Also, because DHS and other agencies may not
always know what information about an encounter with a known or
suspected terrorist will be relevant to law enforcement for the purpose
of conducting an operational response.
(e) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism, law enforcement, or intelligence
efforts in that it would put the subject of an investigation, study, or
analysis on notice of that fact, thereby permitting the subject to
engage in conduct designed to frustrate or impede that
[[Page 49]]
activity. The nature of counterterrorism, law enforcement, or
intelligence investigations is such that vital information about an
individual frequently can be obtained only from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(f) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism, law enforcement, or
intelligence efforts by putting the subject of an investigation, study,
or analysis on notice of that fact, thereby permitting the subject to
engage in conduct intended to frustrate or impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements)
because portions of this system are exempt from the access and amendment
provisions of subsection (d).
(h) From subsection (e)(5) (Collection of Information) because many
of the records in this system coming from other system of records are
derived from other domestic and foreign agency record systems and
therefore it is not possible for DHS to vouch for their compliance with
this provision; however, the DHS has implemented internal quality
assurance procedures to ensure that data used in the redress process is
as thorough, accurate, and current as possible. In addition, in the
collection of information for law enforcement, counterterrorism, and
intelligence purposes, it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light. The restrictions imposed by (e)(5) would limit the ability of
those agencies' trained investigators and intelligence analysts to
exercise their judgment in conducting investigations and impede the
development of intelligence necessary for effective law enforcement and
counterterrorism efforts. The DHS has, however, implemented internal
quality assurance procedures to ensure that the data used in the redress
process is as thorough, accurate, and current as possible.
(i) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism, law
enforcement, or intelligence investigations to the fact of those
investigations when not previously known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
(k) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
13. The Department of Homeland Security General Training Records
system of records consists of electronic and paper records and will be
used by DHS and its components. The Department of Homeland Security
General Training Records system of records consists of electronic and
paper records and will be used by DHS and its components and offices to
maintain records about individual training, including enrollment and
participation information, information pertaining to class schedules,
programs, and instructors, training trends and needs, testing and
examination materials, and assessments of training efficacy. The data
will be collected by employee name or other unique identifier. The
collection and maintenance of this information will assist DHS in
meeting its obligation to train its personnel and contractors in order
to ensure that the agency mission can be successfully accomplished.
Pursuant to exemptions 5 U.S.C. 552a(k)(6) of the Privacy Act, portions
of this system are exempt from 5 U.S.C. 552a(d) to the extent that
records in this system relate to testing or examination materials used
solely to determine individual qualifications for appointment in the
Federal service. Access to or amendment of this information by the data
subject would compromise the objectivity and fairness of the testing and
examination process.
[71 FR 20523, Apr. 21, 2006, as amended at 72 FR 38749, 38752, July 16,
2007; 73 FR 5421, Jan. 30, 2008; 73 FR 48118, Aug. 18, 2008; 73 FR
56922, 56925, 56928, Sept. 30, 2008; 73 FR 63058, 63059, Oct. 23, 2008;
73 FR 68292, Nov. 18, 2008; 73 FR 71521, Nov. 25, 2008]
PART 7_CLASSIFIED NATIONAL SECURITY INFORMATION--Table of Contents
Sec.
7.1 Purpose.
7.2 Scope.
7.3 Definitions.
Subpart A_Administration
7.10 Authority of the Chief Security Officer, Office of Security.
7.11 Components' responsibilities.
7.12 Violations of classified information requirements.
7.13 Judicial proceedings.
[[Page 50]]
Subpart B_Classified Information
7.20 Classification and declassification authority.
7.21 Classification of information, limitations.
7.22 Classification pending review.
7.23 Emergency release of classified information.
7.24 Duration of classification.
7.25 Identification and markings.
7.26 Derivative classification.
7.27 Declassification and downgrading.
7.28 Automatic declassification.
7.29 Documents of permanent historical value.
7.30 Classification challenges.
7.31 Mandatory review for declassification requests.
Authority: 5 U.S.C. 301; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101); E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64
FR 66089, 3 CFR, 1999 Comp., p. 236; 32 CFR part 2001.
Source: 70 FR 61213, Oct. 21, 2005, unless otherwise noted.
Sec. 7.1 Purpose.
The purpose of this part is to ensure that information within the
Department of Homeland Security (DHS) relating to the national security
is classified, safeguarded, and declassified pursuant to the provisions
of Executive Order 12958, as amended, and implementing directives from
the Information Security Oversight Office (ISOO) of the National
Archives and Records Administration (NARA).
Sec. 7.2 Scope.
(a) This part applies to all employees, detailees and non-contractor
personnel outside the Executive Branch who are granted access to
classified information by the DHS, in accordance with the standards in
Executive Order 12958, as amended, and its implementing directives.
(b) This part does not apply to contractors, grantees and other
categories of personnel falling under the purview of Executive Order
12829, National Industrial Security Program, and its implementing
directives.
(c) This part is independent of and does not affect any
classification procedures or requirements of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq).
(d) This part does not, and is not intended to, create any right to
judicial review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees, or
any other person. This part creates limited rights to administrative
review of decisions. This part does not, and is not intended to, create
any right to judicial review of administrative action.
Sec. 7.3 Definitions.
The terms defined or used in Executive Order 12958, as amended, and
the implementing directives in 32 CFR parts 2001 and 2004, are
applicable to this part.
Subpart A_Administration
Sec. 7.10 Authority of the Chief Security Officer, Office of Security.
(a) The DHS Chief Security Officer (hereafter ``Chief Security
Officer'') is designated as the Senior Agency Official as required by
section 5.4(d) of Executive Order 12958, as amended, and, except as
specifically provided elsewhere in this part, is authorized to
administer the DHS Classified National Security Information program
pursuant to Executive Order 12958, as amended.
(b) The Chief Security Officer shall, among other actions:
(1) Oversee and administer the DHS's program established under
Executive Order 12958, as amended;
(2) Promulgate implementing regulations;
(3) Establish and maintain Department-wide security education and
training programs;
(4) Establish and maintain an ongoing self-inspection program
including the periodic review and assessment of the DHS's classified
product;
(5) Establish procedures to prevent unnecessary access to classified
information, including procedures that:
(i) Require that a need for access to classified information is
established before initiating administrative procedures to grant access;
and
[[Page 51]]
(ii) Ensure that the number of persons granted access to classified
information is limited to the minimum necessary for operational and
security requirements and needs;
(6) Develop special contingency plans for the safeguarding of
classified information used in or near hostile or potentially hostile
areas;
(7) Coordinate with the DHS Chief Human Capital Officer, as
appropriate to ensure that the performance contract or other system used
to rate personnel performance includes the management of classified
information as a critical element or item to be evaluated in the rating
of:
(i) Original classification authorities;
(ii) Security managers or security specialists; and
(iii) All other personnel whose duties significantly involve the
creation or handling of classified information;
(8) Account for the costs associated with implementing this part and
report the cost to the Director of ISOO;
(9) Assign in a prompt manner personnel to respond to any request,
appeal, challenge, complaint, or suggestion concerning Executive Order
12958, as amended, that pertains to classified information that
originated in a DHS component that no longer exists and for which there
is no clear successor in function;
(10) Report violations, take corrective measures and assess
appropriate sanctions as warranted, in accordance with Executive Order
12958, as amended;
(11) Overseeing DHS participation in special access programs
authorized under Executive Order 12958, as amended;
(12) Direct and administer DHS's personnel security program in
accordance with Executive Order 12968 and other applicable law;
(13) Direct and administer DHS implementation and compliance with
the National Industrial Security Program in accordance with Executive
Order 12829 and other applicable guidance; and
(14) Perform any other duties as the Secretary may designate.
(c) The Chief Security Officer shall maintain a current list of all
officials authorized pursuant to this part to originally classify or
declassify documents.
Sec. 7.11 Components' responsibilities.
Each DHS component shall appoint a security officer or security
liaison to implement this part. the security officer/security liaison
shall:
(a) Implement, observe, and enforce security regulations or
procedures within their component with respect to the classification,
declassification, safeguarding, handling, and storage of classified
national security information;
(b) Report violations of the provisions of this regulation to the
Chief Security Officer committed by employees of their component, as
required;
(c) Ensure that employees of their component acquire adequate
security education and training, as required by the DHS classified
information security procedures;
(d) Continuously review the requirements for personnel access to
classified information as a part of the continuous need-to-know
evaluation, and initiate action to administratively withdraw or reduce
the level of access authorized, as appropriate; and
(e) Cooperate fully with any request from the Chief Security Officer
for assistance in the implementation of this part.
Sec. 7.12 Violations of classified information requirements.
(a) Any person who suspects or has knowledge of a violation of this
part, including the known or suspected loss or compromise of classified
information, shall promptly report such violations or possible
violations, pursuant to requirements set forth in DHS directives.
(b) DHS employees and detailees may be reprimanded, suspended
without pay, terminated from classification authority, suspended from or
denied access to classified information, or subject to other sanctions
in accordance with applicable law and DHS regulations or directives if
they:
(1) Knowingly, willfully, or negligently disclose to unauthorized
persons information properly classified under Executive Order 12958, as
amended, or its predecessor orders;
[[Page 52]]
(2) Knowingly, willfully, or negligently classify or continue the
classification of information in violation of Executive Order 12958, as
amended, or its implementing directives; or
(3) Knowingly, willfully, or negligently violate any other provision
of Executive Order 12958, as amended, or DHS implementing directives,
or;
(4) Knowingly, willfully, or negligently grant eligibility for, or
allow access to, classified information in violation of Executive Order
12958, or its implementing directives, this part, or DHS implementing
directives promulgated by the Chief Security Officer.
Sec. 7.13 Judicial proceedings.
(a) Any DHS official or organization receiving an order or subpoena
from a Federal or State court, or an administrative subpoena from a
Federal agency, to produce classified information (see 6 CFR 5.41
through 5.49), required to submit classified information for official
DHS litigative purposes, or receiving classified information from
another organization for production of such in litigation, shall notify
the Office of the General Counsel, unless the demand for production is
made by the Office of the General Counsel, and immediately determine
from the agency originating the classified information whether the
information can be declassified. If declassification is not possible,
DHS representatives will take appropriate action to protect such
information, pursuant to the provisions of this section.
(b) If a determination is made to produce classified information in
a judicial proceeding in any manner, the DHS General Counsel attorney,
in conjunction with the Department of Justice, shall take appropriate
steps to protect classified information in judicial proceedings and
retrieve the information when the information is no longer required in
such judicial proceedings, in accordance with the Department of Justice
procedures, and in Federal criminal cases, pursuant to the requirements
of Classified Information Procedures Act (CIPA), Public Law 96-456, 94
Stat. 2025, (18 U.S.C. App.), and the ``Security Procedures Established
Pursuant to Public Law 96-456, 94 Stat. 2025, by the Chief Justice of
the United States for the Protection of Classified Information,'' and
other applicable authorities.
Subpart B_Classified Information
Sec. 7.20 Classification and declassification authority.
(a) Top Secret original classification authority may only be
exercised by the Secretary of Homeland Security and by officials to whom
such authority is delegated in writing by the Secretary. The Chief
Security Officer, as the Senior Agency Official, is delegated authority
to originally classify information up to and including Top Secret. No
official who is delegated Top Secret original classification authority
by the Secretary may further delegate such authority.
(b) The Chief Security Officer may delegate Secret and Confidential
original classification authority to other officials determined to have
frequent need to exercise such authority. No official who is delegated
original classification authority by the Secretary or the Chief Security
Officer may further delegate such authority.
(c) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level. In
the absence of an official authorized to exercise classification
authority, the person designated to act in lieu of such official may
exercise the official's classification authority.
Sec. 7.21 Classification of information, limitations.
(a) Information may be originally classified only if all of the
following standards are met:
(1) An original classification authority is classifying the
information;
(2) The information is owned by, produced by or for, or is under the
control of the United States Government;
(3) The information falls within one or more of the categories of
information specified in section 1.4 of Executive Order 12958, as
amended; and
(4) The original classification authority determines that the
unauthorized disclosure of the information reasonably could be expected
to result in damage to the national security and
[[Page 53]]
such official is able to identify or describe the damage.
(b) Information shall be classified as Top Secret, Secret, or
Confidential in accordance with and in compliance with the standards and
criteria in Executive Order 12958, as amended. No other terms shall be
used to identify United States classified information except as
otherwise provided by statute.
(c) Information shall not be classified in order to:
(1) Conceal inefficiency, violations of law, or administrative
error;
(2) Prevent embarrassment to a person, organization, or agency;
(3) Restrain competition;
(4) Prevent or delay release of information that does not require
protection in the interest of national security.
(d) Information may be reclassified after it has been declassified
and released to the public under proper authority only in accordance
with the following conditions:
(1) The reclassification action is taken under the personal
authority and with the written approval of the Secretary or Deputy
Secretary of Homeland Security, based on the determination that the
reclassification of the information is necessary in the interest of the
national security;
(2) The reclassification of the information meets the standards and
criteria for classification pursuant to Executive Order 12958, as
amended;
(3) The information may be reasonably recovered; and
(4) The reclassification action is reported promptly to the Director
of ISOO.
(e) Information that has not previously been disclosed to the public
under proper authority may be classified or reclassified after DHS has
received a request for it under the Freedom of Information Act (5 U.S.C.
552), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review
provisions of Executive Order 12958, as amended, section 3.5. When it is
necessary to classify or reclassify such information, it shall be
forwarded to the Chief Security Officer and classified or reclassified
only at the direction of the Secretary or Deputy Secretary of Homeland
Security.
Sec. 7.22 Classification pending review.
(a) Whenever persons who do not have original classification
authority originate or develop information that they believe requires
immediate classification and safeguarding, and no authorized classifier
is available, that person shall:
(1) Safeguard the information in a manner appropriate for the
classification level they believe it to be;
(2) Apply the appropriate overall classification markings; and
(3) Within five working days, securely transmit the information to
the organization that has appropriate subject matter interest and
classification authority.
(b) When it is not clear which component would be the appropriate
original classifier, the information shall be sent to the Chief Security
Officer to determine the appropriate organization.
(c) The organization with classification authority shall decide
within 30 days whether to classify the information.
Sec. 7.23 Emergency release of classified information.
(a) The Secretary of Homeland Security has delegated to certain DHS
employees the authority to disclose classified information to an
individual or individuals not otherwise routinely eligible for access in
emergency situations when there is an imminent threat to life or in
defense of the homeland.
(b) In exercising this authority, the delegees shall adhere to the
following conditions:
(1) Limit the amount of classified information disclosed to a
minimum to achieve the intended purpose;
(2) Limit the number of individuals who receive it to only those
persons with a specific need-to-know;
(3) Transmit the classified information through approved
communication channels by the most secure and expeditious method
possible, or by other means deemed necessary in exigent circumstances;
(4) Provide instructions about what specific information is
classified and how it should be safeguarded. Physical
[[Page 54]]
custody of classified information must remain with an authorized Federal
Government entity, in all but the most extraordinary circumstances as
determined by the delegated official;
(5) Provide appropriate briefings to the recipients on their
responsibilities not to disclose the information and obtain from the
recipients a signed DHS Emergency Release of Classified Information Non-
disclosure Form. In emergency situations requiring immediate verbal
release of information, the signed nondisclosure agreement memorializing
the briefing may be received after the emergency abates;
(6) Within 72 hours of the disclosure of classified information, or
the earliest opportunity that the emergency permits, but no later than 7
days after the release, the disclosing authority must notify the DHS
Chief Security Officer and the originating agency of the information
disclosed. A copy of the signed nondisclosure agreements should be
forwarded with the notification under this paragraph (b)(6), or as soon
thereafter as practical.
(7) Release of information pursuant to this authority does not
constitute declassification of the information.
(8) Authority to disclose classified information may not be further
delegated.
Sec. 7.24 Duration of classification.
(a) At the time of original classification, original classification
authorities shall apply a date or event in which the information will be
automatically declassified.
(b) The original classification authority shall attempt to establish
a specific date or event not more than 10 years after the date of
origination in which the information will be automatically declassified.
If the original classification authority cannot determine an earlier
specific date or event it shall be marked for automatic declassification
10 years from the date of origination.
(c) If the original classification authority determines that the
sensitivity of the information requires classification beyond 10 years,
it may be marked for automatic declassification for up to 25 years from
the date of original classification decision.
(d) Original classification authorities do not have the authority to
classify or retain the classification of information beyond 25 years
from the date of origination. The only exception to this rule is when
disclosure of the information could be expected to reveal the identity
of a confidential human source or human intelligence source. In this
instance, the information may be marked for declassification as ``25X1-
Human,'' indicating that the information is exempt from the ``25 Year
Rule'' for automatic declassification. This marking is not authorized
for use when the information pertains to non-human intelligence sources
or intelligence methods. In all other instances, classification beyond
25 years shall only be authorized in accordance with Sec. 7.28 of this
part and Executive Order 12958, as amended.
Sec. 7.25 Identification and markings.
(a) Classified information must be marked pursuant to the standards
set forth in section 1.6 of Executive Order 12958, as amended; 32 CFR
part 2001, subpart B; and internal DHS guidance provided by the Chief
Security Officer.
(b) Foreign government information shall retain its original
classification markings or be assigned a U.S. classification that
provides a degree of protection at least equivalent to that required by
the entity that furnished the information.
(c) Information assigned a level of classification under predecessor
Executive Orders shall remain classified at that level of
classification, except as otherwise provided herein, i.e., the
information is reclassified or declassified.
Sec. 7.26 Derivative classification.
(a) Derivative classification is defined as the incorporating,
paraphrasing, restating, or generating in a new form information that is
already classified, and marking the newly developed material consistent
with the classification markings that apply to the source information.
Information is also derivatively classified when classification is based
on instructions provided in a security classification guide.
(b) Persons need not possess original classification authority to
derivatively
[[Page 55]]
classify information based on source documents or classification guides.
(c) Persons who apply derivative classification markings shall
observe original classification decisions and carry forward to any newly
created documents the pertinent classification markings.
(d) Information classified derivatively from other classified
information shall be classified and marked in accordance with the
standards set forth in sections 2.1 and 2.2 of Executive Order 12958, as
amended, 32 CFR 2001.22, and internal DHS guidance provided by the Chief
Security Officer.
Sec. 7.27 Declassification and downgrading.
(a) Classified information shall be declassified as soon as it no
longer meets the standards for classification. Declassification and
downgrading is governed by Part 3 of Executive Order 12958, as amended,
implementing ISOO directives at 32 CFR part 2001, subpart C, and
applicable internal DHS direction provided by the Chief Security
Officer.
(b) Information shall be declassified or downgraded by the official
who authorized the original classification if that official is still
serving in the same position, the originator's successor, or a
supervisory official of either, or by officials delegated such authority
in writing by the Secretary of Homeland Security or the Chief Security
Officer.
(c) It is presumed that information that continues to meet the
classification requirements under Executive Order 12958, as amended,
requires continued protection. In some exceptional cases during
declassification reviews, the need to protect classified information may
be outweighed by the public interest in disclosure of the information,
and in these cases the information should be declassified. If it appears
that the public interest in disclosure of the information may outweigh
the need to protect the information, the declassification reviewing
official shall refer the information with a recommendation for decision
to the Chief Security Officer. The Chief Security Officer shall review
the information and make a recommendation to the Secretary on whether
the public interest in disclosure outweighs the damage to national
security that might reasonably be expected from disclosure. The
Secretary shall decide whether to declassify the information. The
decision of the Secretary shall be final. This provision does not
amplify or modify the substantive criteria or procedures for
classification or create any substantive or procedural rights subject to
judicial review.
(d) Each component shall develop schedules for declassification of
records in the National Archives.
Sec. 7.28 Automatic declassification.
(a) Subject to paragraph (b) of this section, all classified
information contained in records that are more than 25 years old that
have been determined to have permanent historical value shall be
declassified automatically on December 31, 2006. Subsequently, all
classified information in such records shall be automatically
declassified not later than 25 years after the date of its original
classification with the exception of specific information exempt from
automatic declassification pursuant to section 3.3 (b) through (d) of
Executive Order 12958, as amended.
(b) At least 180 days before information is declassified
automatically under this section, the Chief Security Officer shall
notify the ISOO of any specific information that DHS proposes to exempt
from automatic declassification. The notification shall include:
(1) A description of the information;
(2) An explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of time;
and
(3) A specific date or event for declassification of the information
whenever the information exempted does not identify a confidential human
source or human intelligence source.
(c) Proposed exemptions under this section shall be forwarded to the
Chief Security Officer. When the Chief Security Officer determines the
exemption request is consistent with this section, he or she will submit
the exemption request to the Executive Secretary of the Interagency
Security Classification Appeals Panel (ISCAP) for approval.
(d) Declassification guides that narrowly and precisely define
exempted
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information may be used to exempt information from automatic
declassification. Declassification guides must include the exemption
notification information detailed in paragraph (b) of this section, and
be approved pursuant to paragraph (c) of this section.
Sec. 7.29 Documents of permanent historical value.
The original classification authority, to the greatest extent
possible, shall declassify classified information contained in records
determined to have permanent historical value under 44 U.S.C. 2107
before they are accessioned into the National Archives.
Sec. 7.30 Classification challenges.
(a) Authorized holders of information classified by DHS who, in good
faith, believe that specific information is improperly or unnecessarily
classified are encouraged and expected to challenge the classification
status of that information pursuant to section 1.8 of Executive Order
12958, as amended. Authorized holders may submit classification
challenges in writing to the original classification authority with
jurisdiction over the information in question. If an original
classification authority cannot be determined, the challenge shall be
submitted to the Chief Security Officer. The challenge need not be more
specific than a question as to why the information is or is not
classified, or is classified at a certain level.
(b) If anonymity of the challenger is requested, the challenger may
submit the challenge to the Office of Security. The Office of Security
will act as an agent for the challenger and the identity of the
challenger will be redacted.
(c) The original classification authority shall promptly, and in no
case later than 60 days, provide a written response to the submitter.
The original classification authority may classify or declassify the
information subject to the challenge and, if applicable, state specific
reasons why the original classification determination was proper. If the
original classification authority is not able to respond within 60 days,
he or she shall inform the individual who filed the challenge in writing
of that fact, and the anticipated determination date.
(d) The individual challenging the classification will be notified
of the determination made by the original classification authority and
that the individual may appeal this determination to the Chief Security
Officer. Upon receipt of such appeals, the Chief Security Officer shall
convene a DHS Classification Appeals Panel (DHS/CAP). The DHS/CAP shall,
at a minimum, consist of representatives from the Office of Security,
the Office of General Counsel, and a representative from the component
having jurisdiction over the information. Additional members may be
added as determined by the DHS Chief Security Officer. The DHS/CAP shall
be chaired by the Chief Security Officer.
(e) If the requester files an appeal through the DHS/CAP, and the
appeal is denied, the requester shall be notified of the right to appeal
the denial to the Interagency Security Classification Appeals Panel
(ISCAP) pursuant to section 5.3 of Executive Order 12958, as amended,
and the rules issued by the ISCAP pursuant to section 5.3 of Executive
Order 12958, as amended.
(f) Any individual who challenges a classification and believes that
any action has been taken against him or her in retaliation or
retribution because of that challenge shall report the facts to the
Office of the Inspector General or other appropriate office.
(g) Nothing in this section shall prohibit a person from informally
challenging the classified status of information directly to the
original classification authority.
(h) Requests for review of classified material for declassification
by persons other than authorized holders are governed by 6 CFR 7.31.
Sec. 7.31 Mandatory review for declassification requests.
(a) Any person may request that classified information be reviewed
for declassification pursuant to the mandatory declassification review
provisions of section 3.6 of Executive Order 12958, as amended. Such
requests shall be sent to the Departmental Disclosure Officer, Privacy
Office, 245 Murray Lane, SW., Building 410, Washington, DC 20528.
[[Page 57]]
(b) The request must sufficiently describe the document or material
with enough specificity to allow it to be located by the component with
a reasonable amount of effort. When the description of the information
in the request is deficient, the component shall solicit as much
additional identifying information as possible from the requester. If
the information or material requested cannot be obtained with a
reasonable amount of effort, the component shall provide the requester,
through the DHS Disclosure Officer, with written notification of the
reasons why no action will be taken and of the requester's right to
appeal.
(c) Requests for review of information that has been subjected to a
declassification review request within the preceding two years shall not
be processed. The DHS Disclosure Officer will notify the requester of
such denial.
(d) Requests for information exempted from search or review under
sections 701, 702, or 703 of the National Security Act of 1947, as added
and amended (50 U.S.C. 431 through 433), or other provisions of law,
shall not be processed. The DHS Disclosure Officer will notify the
requester of such denial.
(e) If documents or material being reviewed for declassification
under this section contain information that has been originally
classified by another government agency, the reviewing authority shall
notify the DHS Disclosure Officer. Unless the association of that
organization with the requested information is itself classified, the
DHS Disclosure Officer will then notify the requester of the referral.
(f) A DHS component may refuse to confirm or deny the existence, or
non-existence, of requested information when its existence or non-
existence, is properly classified.
(g) DHS components shall make a final determination on the request
as soon as practicable but within one year from receipt. When
information cannot be declassified in its entirety, components shall
make reasonable efforts to redact those portions that still meet the
standards for classification and release those declassified portions of
the requested information that constitute a coherent segment.
(h) DHS components shall notify the DHS Disclosure Officer of the
determination made in the processing of a mandatory review request. Such
notification shall include the number of pages declassified in full; the
number of pages declassified in part; and the number of pages where
declassification was denied.
(i) The DHS Disclosure Officer shall maintain a record of all
mandatory review actions for reporting in accordance with applicable
Federal requirements.
(j) The mandatory declassification review system shall provide for
administrative appeal in cases where the review results in the
information remaining classified. The requester shall be notified of the
results of the review and of the right to appeal the denial of
declassification. To address such appeals, the DHS Disclosure Office
shall convene a DHS Classification Appeals Panel (DHS/CAP). The DHS/CAP
shall, at a minimum, consist of representatives from the Disclosure
Office, the Office of Security, the Office of General Counsel, and a
representative from the component having jurisdiction over the
information. Additional members may be added as determined by the DHS
Disclosure Officer. The DHS/CAP shall be chaired by the DHS Disclosure
Officer.
(k) If the requester files an appeal through the DHS/CAP, and the
appeal is denied, the requester shall be notified of the right to appeal
the denial to the ISCAP pursuant to section 5.3 of Executive Order
12958, as amended, and the rules issued by the ISCAP pursuant to section
5.3 of Executive Order 12958, as amended.
PART 9_RESTRICTIONS UPON LOBBYING--Table of Contents
Subpart A_General
Sec.
9.1 Conditions on use of funds.
9.2 Definitions.
9.3 Certification and disclosure.
Subpart B_Activities by Own Employees
9.11 Agency and legislative liaison.
9.15 Professional and technical services.
9.20 Reporting.
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Subpart C_Activities by Other than Own Employees
9.23 Professional and technical services.
Subpart D_Penalties and Enforcement
9.31 Penalties.
9.32 Penalty procedures.
9.33 Enforcement.
Subpart E_Exemptions
9.41 Secretary of Defense.
Subpart F_Agency Reports
9.51 Semi-annual compilation.
9.52 Inspector General report.
Appendix A to Part 9--Certification Regarding Lobbying
Appendix B to Part 9--Disclosure Form To Report Lobbying
Authority: Sec. 319, Pub. L. 101-121, 103 Stat. 750 (31 U.S.C.
1352); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 U.S.C.
301.
Source: 68 FR 10912, Mar. 6, 2003, unless otherwise noted.
Subpart A_General
Sec. 9.1 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative agreement to pay any
person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with any of the
following covered Federal actions: the awarding of any Federal contract,
the making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A to this part, that the
person has not made, and will not make, any payment prohibited by
paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B to this part, if such
person has made or has agreed to make any payment using non appropriated
funds (to include profits from any covered Federal action), which would
be prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A to this part,
whether that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with that loan insurance or
guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B to this
part, if that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with that loan insurance or
guarantee.
Sec. 9.2 Definitions.
For purposes of this part:
(a) Agency has the same meaning as provided in 5 U.S.C. 552(f), and
includes Federal executive departments and agencies as well as
independent regulatory commissions and Government corporations, as
defined in 31 U.S.C. 9101(1).
(b) The term covered Federal action:
(1) Means any of the following Federal actions:
(i) The awarding of any Federal contract;
(ii) The making of any Federal grant;
(iii) The making of any Federal loan;
(iv) The entering into of any cooperative agreement; and
(v) The extension, continuation, renewal, amendment, or modification
of
[[Page 59]]
any Federal contract, grant, loan, or cooperative agreement.
(2) Does not include receiving from an agency a commitment providing
for the United States to insure or guarantee a loan. Loan guarantees and
loan insurance are addressed independently within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR) (48 CFR Chapter 1) and any other acquisition contract for real or
personal property or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance that provides services instead of money, or
other assistance in the form of revenue sharing, loans, loan guarantees,
loan insurance, interest subsidies, insurance, or direct United States
cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definition
of Indian tribe in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee or loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual appointed to a position in the Government pursuant
to title 5 of the United States Code, including any position by
temporary appointment or any appointment as an acting official as
outlined in section 1511(c) of the Homeland Security Act;
(2) A member of the uniformed services as defined in 37 U.S.C.
101(3);
(3) A special Government employee as defined in section 18 U.S.C.
202; and
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act at 5 U.S.C. App. 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to professional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and sub grantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
[[Page 60]]
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 9.3 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b)(1) Each person shall file a certification, and a disclosure
form, if required, upon receipt by such person of:
(i) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(ii) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000.
(2) A filing described in paragraph (b)(1) of this section shall not
be required if such person previously filed a certification, and a
disclosure form required under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraph (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action;
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d)(1) The requirements of paragraph (d)(2) of this section apply to
any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(i) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(ii) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(iii) A contract or subcontract exceeding $100,000 at any tier under
a Federal loan exceeding $150,000; or
(iv) A contract or subcontract exceeding $100,000 at any tier under
a Federal cooperative agreement.
(2) A person described in paragraph (d)(1) of this section shall
file a certification, and a disclosure form, if required, to the next
tier.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not
[[Page 61]]
be shared by any tier to which the erroneous representation is
forwarded. Submitting an erroneous certification or disclosure
constitutes a failure to file the required certification or disclosure,
respectively. If a person fails to file a required certification or
disclosure, the United States may pursue all available remedies,
including those authorized by section 31 U.S.C. 1352.
(g) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C of this part.
Subpart B_Activities by Own Employees
Sec. 9.11 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 9.15 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
of a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the
[[Page 62]]
preparation, submission or negotiation of a covered Federal action.
Thus, for example, communications with the intent to influence made by a
lawyer that do not provide legal advice or analysis directly and solely
related to the legal aspects of his or her client's proposal, but
generally advocate one proposal over another are not allowable under
this section because the lawyer is not providing professional legal
services. Similarly, communications with the intent to influence made by
an engineer providing an engineering analysis prior to the preparation
or submission of a bid or proposal are not allowable under this section
since the engineer is providing technical services but not directly in
the preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 9.20 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other than Own Employees
Sec. 9.23 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 9.3(a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
of a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal action include those required by law or
regulation, or reasonably expected to be required by
[[Page 63]]
law or regulation, and any other requirements in the actual award
documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 9.31 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B to this part) to be filed or amended if required herein,
shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 9.32 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar
as these provisions are not inconsistent with the requirements in this
part.
Sec. 9.33 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 9.41 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 9.51 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B to this part) and, on May 31 and November 30 of
each year, submit to the Secretary of the Senate and the Clerk of the
House of Representatives a report containing a compilation of the
information contained in the disclosure reports received during the six-
month period ending on March 31 or September 30, respectively, of that
year.
[[Page 64]]
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 9.52 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year an evaluation of the compliance of that agency
with, and the effectiveness of, the requirements in this part. The
evaluation may include any recommended changes that may be necessary to
strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Sec. Appendix A to Part 9--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
I. The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form--LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all sub awards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 31 U.S.C. 1352. Any
person who fails to file the required certification shall be subject to
a civil
[[Page 65]]
penalty of not less than $10,000 and not more than $100,000 for each
such failure.
II. Statement for Loan Guarantees and Loan Insurance:
The undersigned states, to the best of his or her knowledge and belief,
that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering
into this transaction imposed by 31 U.S.C. 1352. Any person who fails to
file the required statement shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure.
Appendix B to Part 9--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TR06MR03.021
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[GRAPHIC] [TIFF OMITTED] TR06MR03.022
[[Page 67]]
[GRAPHIC] [TIFF OMITTED] TR06MR03.023
PART 11_CLAIMS--Table of Contents
Subpart A_Debt Collection
Sec.
11.1 General application.
11.2 Definitions.
11.3 Demand for payment.
11.4 Collection by administrative offset.
11.5 Administrative wage garnishment.
11.6 Reporting debts.
11.7 Private collection agencies.
11.8 Suspension or revocation of eligibility for loans and loan
guarantees, licenses, permits, or privileges.
11.9 Collection in installments.
11.10 Interest, penalty charges, and administrative costs.
11.11 Compromise.
11.12 Suspending or terminating collection activity.
11.13 Referrals to the Department of Justice.
11.14 Receipt of offset requests by other Federal agencies.
11.15 Applying the debt against DHS payments.
Authority: 5 U.S.C. 301, 5514; 26 U.S.C. 6402, 31 U.S.C. 3701, 3711,
3716, 3717, 3718, 3720A, 3720B, 3720D; Pub. L. 107-296, 116 Stat. 2135
(6 U.S.C. 1 et seq.).
[[Page 68]]
Source: 72 FR 4190, Jan. 30, 2007, unless otherwise noted.
Sec. 11.1 General application.
(a) Application of Debt Collection Standards. The provisions of 31
CFR parts 285, 900-904, as amended by the Secretary of the Treasury and
the Attorney General, are applicable to debts and debt procedures within
the jurisdiction of the Department of Homeland Security.
(b) Authority. The Chief Financial Officer of the Department of
Homeland Security is delegated authority to administer this subpart and
to redelegate authority under this subpart.
(c) Application to DHS. This subpart provides procedures for the
collection of DHS debts, and for collection of other debts owed to the
United States when a request for offset of a DHS payment is received by
the DHS from another federal agency. This subpart applies to all of DHS,
including all of its components. It applies to the DHS when collecting a
DHS debt, to persons who owe DHS debts, and to Federal agencies
requesting offset of a payment issued by the DHS as a payment agency
(including salary payments to DHS employees).
(d) Exclusions. This subpart does not apply to debt arising from
taxation under the Internal Revenue Act of 1986, as amended, or to any
debt excepted from the FCCS, 31 CFR parts 900 through 904.
(e) Non-exclusive procedure or remedy. Nothing in this subpart
precludes collection or disposition of any debt under statutes and
regulations other than those described in this subpart. To the extent
that the provisions of laws or other regulations apply, including the
remission or mitigation of fines, penalties, forfeitures and debts
arising under the tariff laws of the United States, DHS components are
authorized to collect debts under those laws and regulations. DHS
components and other Federal agencies may simultaneously use multiple
collection remedies to collect a debt, except as prohibited by law.
(f) Additional policies and procedures. DHS components may, but are
not required to, promulgate additional policies and procedures
consistent with this subpart and other applicable Federal law, policies,
and procedures.
(g) Duplication not required. Nothing in this subpart requires DHS
to duplicate notices or administrative proceedings required by contract,
this subpart, or other laws or regulations.
(h) No private rights created. This subpart does not create any
right or benefit, substantive or procedural, enforceable at law or in
equity by a party against the United States, its agencies, its officers,
or any other person, nor shall the failure of any DHS component to
comply with any of the provisions of this subpart or 31 CFR parts 285,
900-904 be a defense to the collection of any debt or enforcement of any
other law.
Sec. 11.2 Definitions.
In addition to the definitions provided in 31 CFR parts 285, 900-
904, as used in this subpart:
(a) Department of Homeland Security or DHS means the United States
Department of Homeland Security and includes the Secretary and any DHS
entity which reports directly or indirectly to the Secretary.
(b) DHS debt means a debt owed to DHS by a person.
(c) Secretary means the Secretary of Homeland Security.
Sec. 11.3 Demand for payment.
(a) Notice requirements. Generally, before DHS starts the collection
actions described in this subpart, DHS sends a written notice to the
debtor under 31 CFR 901.2. The notice provided under this section
includes notice of any and all actions DHS may take to offset the debt,
including any notices required under 31 CFR parts 285, 900-904.
(b) Exceptions to notice requirements. DHS may omit from any notice
to a debtor any provision that is not legally required given the
collection remedies to be applied to a particular debt.
Sec. 11.4 Collection by administrative offset.
(a) General Provisions for Offset. DHS will collect debts by
administrative offset pursuant to 31 CFR parts 900-904.
(b) Centralized Offset through the Treasury Offset Program. DHS
adopts the provisions of 31 CFR 901.3.
[[Page 69]]
(c) Non-centralized Offset for DHS Debts. When centralized offset is
not available or appropriate, DHS may collect delinquent DHS debts
through non-centralized offset. In these cases, DHS may offset a payment
internally or make a request directly to a Federal payment agency to
offset a payment owed to the debtor. Before requesting a payment
authorizing agency to conduct a non-centralized administrative offset,
DHS will provide the debtor with the due process set forth in 31 CFR
901.3(b)(4) and the notice requirements of 31 CFR 901.2 (unless the due
process and notice requirements are not required under that part). DHS
will provide the payment authorizing agency written certification that
the debtor owes the past due, legally enforceable delinquent debt in the
amount stated, and that DHS has fully complied with its regulations
concerning administrative offset.
(d) Hearing Procedures for Federal Employees--(1) Request for a
hearing. A Federal employee who has received a notice that his or her
DHS debt will be collected by means of salary offset may request a
hearing concerning the existence or amount of the debt. The Federal
employee also may request a hearing concerning the amount proposed to be
deducted from the employee's pay each pay period. The employee must send
any request for hearing, in writing, to the office designated in the
notice described in section 11.4(c). The request must be received by the
designated office on or before the 15th calendar day following the
employee's receipt of the notice. The employee must sign the request and
specify whether an oral or paper hearing is requested. If an oral
hearing is requested, the employee must explain why the matter cannot be
resolved by review of the documentary evidence alone. All travel
expenses incurred by the Federal employee in connection with an in-
person hearing will be borne by the employee.
(2) Failure to submit timely request for hearing. If the employee
fails to submit a request for hearing within the time period described
in paragraph (d)(1) of this section, the employee will have waived the
right to a hearing, and salary offset may be initiated. However, DHS
should accept a late request for hearing if the employee can show that
the late request was the result of circumstances beyond the employee's
control or because of a failure to receive actual notice of the filing
deadline.
(3) Hearing official. DHS must obtain the services of a hearing
official who is not under the supervision or control of the Secretary.
The DHS Chief Financial Officer will coordinate DHS efforts to obtain
the services of a hearing official.
(4) Notice of hearing. After the employee requests a hearing, the
designated hearing official informs the employee of the form of the
hearing to be provided. For oral hearings, the notice sets forth the
date, time and location of the hearing. For paper hearings, the notice
provides the employee the date by which he or she should submit written
arguments to the designated hearing official. The hearing official gives
the employee reasonable time to submit documentation in support of the
employee's position. The hearing official schedules a new hearing date
if requested by both parties. The hearing official gives both parties
reasonable notice of the time and place of a rescheduled hearing.
(5) Oral hearing. The hearing official conducts an oral hearing if
he or she determines the matter cannot be resolved by review of
documentary evidence alone (for example, when an issue of credibility or
veracity is involved). The hearing need not take the form of an
evidentiary hearing, but may be conducted in a manner determined by the
hearing official, including but not limited to:
(i) Informal conferences with the hearing official, in which the
employee and agency representative will be given full opportunity to
present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee by the
hearing official; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(6) Paper hearing. If the hearing official determines an oral
hearing is not necessary, he or she makes the determination based upon a
review of the available written record, including any
[[Page 70]]
documentation submitted by the employee in support of his or her
position.
(7) Failure to appear or submit documentary evidence. In the absence
of good cause shown (for example, excused illness), if the employee
fails to appear at an oral hearing or fails to submit documentary
evidence as required for a paper hearing, the employee waives the right
to a hearing, and salary offset may be initiated. Further, the employee
is deemed to admit the existence and amount of the debt as described in
the notice of intent to offset. If a DHS representative does not appear
at an oral hearing, the hearing official shall proceed with the hearing
as scheduled, and make his or her determination based upon the oral
testimony presented and the documentary evidence submitted by both
parties.
(8) Burden of proof. DHS has the initial burden to prove the
existence and amount of the debt. Thereafter, if the employee disputes
the existence or amount of the debt, the employee must prove by a
preponderance of the evidence that no debt exists or that the amount of
the debt is incorrect. In addition, the employee may present evidence
that the proposed terms of the repayment schedule are unlawful, would
cause a financial hardship to the employee, or that collection of the
debt may not be pursued due to operation of law.
(9) Record. The hearing official maintains a summary record of any
hearing provided by this subpart. Witnesses testify under oath or
affirmation in oral hearings.
(10) Date of decision. The hearing official issues a written opinion
stating his or her decision, based upon documentary evidence and
information developed at the hearing, as soon as practicable after the
hearing but not later than 60 days after the date on which the request
for hearing was received by DHS. If the employee requests a delay in the
proceedings, the deadline for the decision may be postponed by the
number of days by which the hearing was postponed. When a decision is
not timely rendered, DHS waives penalties applied to the debt for the
period beginning with the date the decision is due and ending on the
date the decision is issued.
(11) Content of decision. The written decision includes:
(i) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(ii) The hearing official's findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, if applicable.
(12) Final agency action. The hearing official's decision is final.
(f) Waiver not precluded. Nothing in this subpart precludes an
employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or
8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority.
(g) Salary offset process--(1) Determination of disposable pay. The
Chief Financial Officer consults with the appropriate DHS payroll office
to determine the amount of a DHS employee's disposable pay and will
implement salary offset when requested to do so by a DHS component or
another federal agency. If the debtor is not employed by DHS, the agency
employing the debtor will determine the amount of the employee's
disposable pay and implement salary offset upon request.
(2) Amount of salary offset. The amount to be offset from each
salary payment will be up to 15 percent of a debtor's disposable pay, as
follows:
(i) If the amount of the debt is equal to or less than 15 percent of
the disposable pay, such debt generally is collected in one lump sum
payment; or
(ii) Installment deductions are made over a period of no greater
than the anticipated period of employment. An installment deduction will
not exceed 15 percent of the disposable pay from which the deduction is
made unless the employee has agreed in writing to the deduction of a
greater amount or the creditor agency has determined that smaller
deductions are appropriate based on the employee's ability to pay.
(3) Final salary payment. After the employee has separated either
voluntarily or involuntarily from the payment agency, the payment agency
may make a lump sum deduction exceeding 15 percent of disposable pay
from any final salary or other payments pursuant to 31 U.S.C. 3716 in
order to satisfy a debt.
[[Page 71]]
(h) Payment agency's responsibilities. (1) As required by 5 CFR
550.1109, if the employee separates from the payment agency from which
DHS requested salary offset, the payment agency must certify the total
amount of its collection and notify DHS and the employee of the amounts
collected. If the payment agency is aware that the employee is entitled
to payments from the Civil Service Retirement Fund and Disability Fund,
the Federal Employee Retirement System, or other similar payments, it
must provide written notification to the agency responsible for making
such retirement payments that the debtor owes a debt, the amount of the
debt, and that DHS has complied with the provisions of this section. DHS
must submit a properly certified claim to the new payment agency before
the collection can be made.
(2) If the employee is already separated from employment and all
payments due from his or her former payment agency have been made, DHS
may request that money due and payable to the employee from the Civil
Service Retirement Fund and Disability Fund, the Federal Employee
Retirement System, or other similar funds, is administratively offset to
collect the debt. Generally, DHS will collect such monies through the
Treasury Offset Program as described in this section.
(3) When an employee transfers to another agency, DHS should resume
collection with the employee's new payment agency in order to continue
salary offset.
Sec. 11.5 Administrative wage garnishment.
DHS may collect debts from a debtor's wages by means of
administrative wage garnishment in accordance with the requirements of
31 U.S.C. 3720D under the procedures established in 31 CFR 285.11.
Sec. 11.6 Reporting debts.
DHS will report delinquent debts to credit bureaus and other
automated databases in accordance with 31 U.S.C. 3711(e), 31 CFR 901.4,
and the Office of Management and Budget Circular A-129, ``Policies for
Federal Credit Programs and Non-tax Receivables,'' which may be found at
http://www.fms.treas.gov/debt. At least sixty (60) days prior to
reporting a delinquent debt to a consumer reporting agency, DHS sends a
notice to the debtor in accordance with 6 CFR 11.3. DHS may authorize
the Treasury Department's Financial Management Service to report to
credit bureaus those delinquent debts that have been transferred to the
Financial Management Service for administrative offset.
Sec. 11.7 Private collection agencies.
DHS will transfer delinquent DHS debts to the Treasury Department's
Financial Management Service to obtain debt collection services provided
by private collection agencies.
Sec. 11.8 Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges.
The authority to extend financial assistance in the form of a loan,
loan guarantee, or loan insurance to any person delinquent on a nontax
debt owed to DHS is delegated to the Chief Financial Officer.
Sec. 11.9 Collection in installments.
DHS may accept payment of a DHS debt in regular installments, in
accordance with the provisions of 31 CFR 901.8 and policies and
procedures adopted by the Chief Financial Officer (CFO). The CFO will
consult the Office of General Counsel regarding a legally enforceable
written agreement from the debtor.
Sec. 11.10 Interest, penalty charges, and administrative costs.
(a) Assessment and notice. DHS shall assess interest, penalties and
administrative costs on DHS debts in accordance with 31 U.S.C. 3717 and
31 CFR 901.9. Administrative costs of processing and handling a
delinquent debt shall be determined by DHS.
(b) Waiver of interest, penalties, and administrative costs. DHS may
waive interest, penalties, and administrative costs, or any portion
thereof, under the criteria in the FCCS, or when it determines the
collection of these charges would be against equity and good conscience
or not in the best interests of the United States. The authority to
[[Page 72]]
waive interest, penalties and administrative costs is delegated to the
Chief Financial Officer. The DHS Chief Financial Officer shall issue
written guidance on maintaining records of waivers.
(c) Accrual during suspension of debt collection. Interest and
related charges will not accrue during the period a hearing official
does not render a timely decision.
Sec. 11.11 Compromise.
DHS may compromise a debt in accordance with the provisions of 31
CFR part 902. The Chief Financial Officer is authorized to compromise
debts owed to DHS. No debt over $10,000 may be compromised without the
concurrence of the Office of the General Counsel.
Sec. 11.12 Suspending or terminating collection activity.
DHS will suspend or terminate collection activity, or discharge
indebtedness, in accordance with 31 CFR part 903. The Chief Financial
Officer is delegated authority to suspend or terminate collection
activity, or to discharge indebtedness regarding debts owed to DHS, but
for any such action involving a debt over $10,000, the Chief Financial
Officer must obtain the concurrence of the Office of the General
Counsel. The Chief Financial Officer is authorized to act on behalf of
the Secretary in selling a debt, and in determining whether or not it is
in the best interests of the United States to do so.
Sec. 11.13 Referrals to the Department of Justice.
Referrals of debts to the Department of Justice for collection will
be by the General Counsel.
Sec. 11.14 Receipt of offset requests by other Federal agencies.
Other Federal agencies send non-centralized offset requests to DHS
at: U.S. Department of Homeland Security, Attn: Chief Financial Officer,
Mail Stop 0200, Washington, DC 20528-0200. Those agencies must comply
with 31 CFR 901.3 when forwarding the requests to DHS. DHS does not
review the merits of the creditor agency's determination with regard to
the existence or the amount of the debt. When two or more agencies are
seeking offsets from payments made to the same person, or when two or
more debts are owed to a single creditor agency, DHS may determine the
order in which the debts will be collected or whether one or more debts
should be collected by offset simultaneously. For the purposes of this
section, debts owed to DHS generally take precedence over debts owed to
other agencies, but DHS may pay a debt to another agency prior to
collecting for DHS. DHS determines the order of debt collection based
upon the best interests of the United States.
Sec. 11.15 Applying the debt against DHS payments.
(a) Notice to the Debtor. DHS sends a written notice to the debtor
indicating a certified debt claim was received from the creditor agency,
the amount of the debt claimed to be owed by the creditor agency, the
estimated date the offset will begin (if more than one payment), and the
amount of the deduction(s). For employees, DHS generally begins
deductions from pay at the next officially established pay interval.
Deductions continue until DHS knows the debt is paid in full or until
otherwise instructed by the creditor agency. Alternatively, the amount
offset may be an amount agreed upon, in writing, by the debtor and the
creditor agency. If a DHS employee retires or resigns, or if his or her
employment ends before collection of the debt is complete, DHS continues
to offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent
payments until the debt is paid or otherwise resolved. Such payments
include a debtor's final salary payment, lump-sum leave payment, and
other payments payable to the debtor by DHS. See 31 U.S.C. 3716 and 5
CFR 550.1104(l) and 550.1104(m). If the employee is separated from DHS
before the debt is paid in full, DHS will certify to the creditor agency
the total amount of its collection. If DHS is aware the employee is
entitled to payments from the Civil Service Retirement and Disability
Fund, Federal Employee Retirement System, or other similar payments, DHS
provides written notice to the agency making such retirement payments
that the debtor owes a debt (including the amount) and
[[Page 73]]
that the provisions of 5 CFR 550.1109 have been fully complied with. The
creditor agency is responsible for submitting a certified claim to the
agency responsible for making such payments before collection may begin.
Generally, creditor agencies will collect such monies through the
Treasury Offset Program as described in section 11.4.
(b) Notice to the debtor. DHS provides to the debtor a copy of any
notices sent to the creditor agency under this subpart.
(c) Transfer of employee debtor to another Federal agency. If an
employee debtor transfers to another Federal agency before the debt is
paid in full, DHS notifies the creditor agency and provides it a
certification of the total amount of its collection on the debt. The
creditor agency is responsible for submitting a certified claim to the
debtor's new employing agency before collection may begin.
PART 13_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
Sec.
13.1 Basis, purpose, scope and effect.
13.2 Definitions.
13.3 Basis for civil penalties and assessments.
13.4 Investigation.
13.5 Review by the Reviewing Official.
13.6 Prerequisites for issuing a Complaint.
13.7 Complaint.
13.8 Service of Complaint.
13.9 Answer.
13.10 Default upon failure to answer.
13.11 Referral of Complaint and answer to the ALJ.
13.12 Notice of hearing.
13.13 Parties to the hearing.
13.14 Separation of functions.
13.15 Ex parte contacts.
13.16 Disqualification of Reviewing Official or ALJ.
13.17 Rights of parties.
13.18 Authority of the ALJ.
13.19 Prehearing conferences.
13.20 Disclosure of Documents.
13.21 Discovery.
13.22 Exchange of witness lists, Statements, and exhibits.
13.23 Subpoenas for attendance at hearing.
13.24 Protective order.
13.25 Fees.
13.26 Filing, form and service of papers.
13.27 Computation of time.
13.28 Motions.
13.29 Sanctions.
13.30 The hearing and burden of proof.
13.31 Determining the amount of penalties and assessments.
13.32 Location of hearing.
13.33 Witnesses.
13.34 Evidence.
13.35 The record.
13.36 Post-hearing briefs.
13.37 Initial Decision.
13.38 Reconsideration of Initial Decision.
13.39 Appeal to Authority Head.
13.40 Stays ordered by the Department of Justice.
13.41 Stay pending appeal.
13.42 Judicial review.
13.43 Collection of civil penalties and assessments.
13.44 Right to administrative offset.
13.45 Deposit in Treasury of United States.
13.46 Compromise or settlement.
13.47 Limitations.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C., Ch. 1,
sections 101 et seq.); 5 U.S.C. 301; 31 U.S.C. 3801-3812.
Source: 70 FR 59211, Oct. 12, 2005, unless otherwise noted.
Sec. 13.1 Basis, purpose, scope and effect.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, 31 U.S.C. 3801-3812. Section 3809 of title 31, United States
Code, requires each authority to promulgate regulations necessary to
implement the provisions of the statute.
(b) Purpose. This part:
(1) Establishes administrative procedures for imposing civil
penalties and assessments against Persons who Make, submit, or present,
or cause to be Made, submitted, or presented, false, fictitious, or
fraudulent Claims or written Statements to the Authority or to certain
others; and
(2) Specifies the hearing and appeal rights of Persons subject to
allegations of liability for such penalties and assessments.
(c) Scope. This part applies to all components of the Department of
Homeland Security.
(d) Effect. (1) This part applies to program fraud cases initiated
by any component of the Department of Homeland Security on or after
October 12, 2005.
(2) Program fraud cases initiated by any component of the Department
of Homeland Security before October 12, 2005, but not completed before
October 12, 2005, will continue to completion under the rules and
procedures in effect before this part.
[[Page 74]]
Sec. 13.2 Definitions.
The following definitions have general applicability throughout this
part:
(a) ALJ means an Administrative Law Judge in the Authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the Authority pursuant to 5
U.S.C. 3344. An ALJ will preside at any hearing convened under the
regulations in this part.
(b) Authority means the Department of Homeland Security.
(c) Authority Head means the Deputy Secretary, Department of
Homeland Security, or another officer designated by the Deputy
Secretary.
(d) Benefit means, in the context of a Statement, anything of value,
including but not limited to any advantage, preference, privilege,
license, permit, favorable decision, ruling, status, or loan guarantee.
(e) Claim means any request, demand, or submission:
(1) Made to the Authority for property, services, or money
(including money representing grants, loans, insurance, or Benefits);
(2) Made to a recipient of property, services, or money from the
Authority or to a party to a contract with the Authority:
(i) For property or services if the United States:
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such
property or services; or
(C) Will reimburse such recipient or party for the purchase of such
property or services; or
(ii) For the payment of money (including money representing grants,
loans, insurance, or Benefits) if the United States:
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the Authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
(f) Complaint means the administrative Complaint served by the
Reviewing Official on the Defendant under Sec. 13.7.
(g) Defendant means any Person alleged in a Complaint under Sec.
13.7 to be liable for a civil penalty or assessment under Sec. 13.3.
(h) Government means the Government of the United States.
(i) Individual means a natural Person.
(j) Initial Decision means the written decision of the ALJ required
by Sec. 13.10 or Sec. 13.37, and includes a revised Initial Decision
issued following a remand or a motion for reconsideration.
(k) Investigating Official means the Inspector General of the
Department of Homeland Security or an officer or employee of the Office
of the Inspector General designated by the Inspector General and
eligible under 31 U.S.C. 3801(a)(4)(B).
(l) Knows or Has Reason to Know, means that a Person, with respect
to a Claim or Statement:
(1) Has actual knowledge that the Claim or Statement is false,
fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the
Claim or Statement; or
(3) Acts in reckless disregard of the truth or falsity of the Claim
or Statement.
(m) Makes includes presents, submits, and causes to be made,
presented, or submitted. As the context requires, Making or Made will
likewise include the corresponding forms of such terms.
(n) Person means any Individual, partnership, corporation,
association, or private organization, and includes the plural of that
term.
(o) Representative means an attorney who is a member in good
standing of the bar of any State, Territory, or possession of the United
States, the District of Columbia, or the Commonwealth of Puerto Rico.
This definition is not intended to foreclose pro se appearances. That
is, an Individual may appear for himself or herself, and a corporation
or other entity may appear by an owner, officer, or employee of the
corporation or entity.
(p) Reviewing Official means the General Counsel of the Department
of Homeland Security, or other officer or employee of the Department who
is designated by the General Counsel and eligible under 31 U.S.C.
3801(a)(8).
[[Page 75]]
(q) Statement means any representation, certification, affirmation,
Document, record, or accounting or bookkeeping entry Made:
(1) With respect to a Claim or to obtain the approval or payment of
a Claim (including relating to eligibility to Make a Claim); or
(2) With respect to (including relating to eligibility for):
(i) A contract with, or bid or proposal for a contract with the
Authority, or any State, political subdivision of a State, or other
party, if the United States Government provides any portion of the money
or property under such contract or for such grant, loan, or Benefit, or
if the Government will reimburse such State, political subdivision, or
party for any portion of the money or property under such contract or
for such grant, loan, or Benefit; or
(ii) A grant, loan, or Benefit from, the Authority, or any State,
political subdivision of a State, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or Benefit, or if the Government will
reimburse such State, political subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or
Benefit.
Sec. 13.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section,
a Person will be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,500 for each
Claim (as adjusted in accordance with the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Public Law 101-140), as amended by the
Debt Collection Improvement Act of 1996 (Public Law 104-134)) if such
Person Makes a Claim that such Person Knows or Has Reason to Know:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written Statement that asserts
a material fact that is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written Statement that:
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such
omission; and
(C) Is a Statement in which the Person Making such Statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services that
the Person has not provided as claimed.
(2) Each voucher, invoice, Claim form, or other Individual request
or demand for property, services, or money constitutes a separate Claim.
(3) A Claim will be considered Made to the Authority, recipient, or
party when such Claim is actually Made to an agent, fiscal intermediary,
or other entity, including any State or political subdivision thereof,
acting for or on behalf of the Authority, recipient, or party.
(4) Each Claim for property, services, or money is subject to a
civil penalty regardless of whether such property, services, or money is
actually delivered or paid.
(5) If the Government has Made any payment (including transferred
property or provided services) on a Claim, a Person subject to a civil
penalty under paragraph (a)(1) of this section will also be subject to
an assessment of not more than twice the amount of such Claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of this section. Such assessment will be in lieu of damages
sustained by the Government because of such Claim.
(b) Statements. (1) Except as provided in paragraph (c) of this
section, a Person will be subject, in addition to any other remedy that
may be prescribed by law, to a civil penalty of not more than $5,500 (as
adjusted in accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990 (Public Law 101-140), as amended by the Debt
Collection Improvement Act of 1996 (Public Law 104-134)) if such Person
Makes a written Statement that:
(i) The Person Knows or Has Reason to Know:
(A) Asserts a material fact that is false, fictitious, or
fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material
fact that the Person Making the Statement has a duty to include in such
Statement; and
[[Page 76]]
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
Statement.
(2) Each written representation, certification, or affirmation
constitutes a separate Statement.
(3) A Statement will be considered Made to the Authority when such
Statement is actually Made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or on behalf of the Authority.
(c) Specific intent not required. No proof of specific intent to
defraud is required to establish liability under this section.
(d) More than one Person liable. (1) In any case in which it is
determined that more than one Person is liable for Making a Claim or
Statement under this section, each such Person may be held liable for a
civil penalty under this section.
(2) In any case in which it is determined that more than one Person
is liable for Making a Claim under this section on which the Government
has Made payment (including transferred property or provided services),
an assessment may be imposed against any such Person or jointly and
severally against any combination of such Persons.
Sec. 13.4 Investigation.
(a) If an Investigating Official concludes that a subpoena pursuant
to the Authority conferred by 31 U.S.C. 3804(a) is warranted:
(1) The subpoena so issued will notify the Person to whom it is
addressed of the Authority under which the subpoena is issued and will
identify the records or Documents sought;
(2) The Investigating Official may designate a Person to act on his
or her behalf to receive the Documents sought; and
(3) The Person receiving such subpoena will be required to tender to
the Investigating Official or the Person designated to receive the
Documents a certification that the Documents sought have been produced,
or that such Documents are not available and the reasons therefore, or
that such Documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the Investigating Official concludes that an action under the
Act may be warranted, the Investigating Official will submit a report
containing the findings and conclusions of such investigation to the
Reviewing Official.
(c) Nothing in this section will preclude or limit an Investigating
Official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
defer or postpone a report or referral to the Reviewing Official to
avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
Investigating Official to report violations of criminal law to the
Attorney General.
Sec. 13.5 Review by the Reviewing Official.
(a) If, based on the report of the Investigating Official under
Sec. 13.4(b), the Reviewing Official determines that there is adequate
evidence to believe that a Person is liable under Sec. 13.3, the
Reviewing Official will transmit to the Attorney General a written
notice of the Reviewing Official's intention to issue a Complaint under
Sec. 13.7.
(b) Such notice will include:
(1) A Statement of the Reviewing Official's reasons for issuing a
Complaint;
(2) A Statement specifying the evidence that supports the
allegations of liability;
(3) A description of the Claims or Statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money or the value of property,
services, or other Benefits requested or demanded in violation of Sec.
13.3;
(5) A Statement of any exculpatory or mitigating circumstances that
may relate to the Claims or Statements known by the Reviewing Official
or the Investigating Official; and
(6) A Statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
[[Page 77]]
Sec. 13.6 Prerequisites for issuing a Complaint.
(a) The Reviewing Official may issue a Complaint under Sec. 13.7
only if:
(1) The Department of Justice approves the issuance of a Complaint
in a written Statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under Sec. 13.3(a) with
respect to a Claim, the Reviewing Official determines that, with respect
to such Claim or a group of related Claims submitted at the same time
such Claim is submitted (as defined in paragraph (b) of this section),
the amount of money or the value of property or services demanded or
requested in violation of Sec. 13.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of Claims
submitted at the same time will include only those Claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section will be construed to limit the Reviewing
Official's authority to join in a single Complaint against a Person's
Claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
Sec. 13.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a Complaint in accordance with 31 U.S.C. 3803(b)(1), the
Reviewing Official may serve a Complaint on the Defendant, as provided
in Sec. 13.8.
(b) The Complaint will state:
(1) The allegations of liability against the Defendant, including
the statutory basis for liability, an identification of the Claims or
Statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such Claims or Statements;
(2) The maximum amount of penalties and assessments for which the
Defendant may be held liable;
(3) Instructions for filing an answer to request a hearing,
including a specific Statement of the Defendant's right to request a
hearing by filing an answer and to be represented by a Representative;
and
(4) That failure to file an answer within 30 days of service of the
Complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal, as provided in Sec.
13.10.
(5) That the Defendant may obtain copies of relevant material and
exculpatory information pursuant to the process outlined in Sec. 13.20.
(c) At the same time the Reviewing Official serves the Complaint, he
or she will serve the Defendant with a copy of the regulations in this
part.
Sec. 13.8 Service of Complaint.
(a) Service of a Complaint must be Made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service of a Complaint is complete upon
receipt.
(b) Proof of service, stating the name and address of the Person on
whom the Complaint was served, and the manner and date of service, may
be Made by:
(1) Affidavit of the Individual serving the Complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging
receipt; or
(3) Written acknowledgment of receipt by the Defendant or his or her
Representative; or
(4) In case of service abroad, authentication in accordance with the
Convention on Service Abroad of Judicial and Extrajudicial Documents in
Commercial and Civil Matters.
Sec. 13.9 Answer.
(a) The Defendant may request a hearing by serving an answer on the
Reviewing Official within 30 days of service of the Complaint. Service
of an answer will be Made by delivering a copy to the Reviewing Official
or by placing a copy in the United States mail, postage prepaid and
addressed to the Reviewing Official. Service of an answer is complete
upon such delivery or mailing. An answer will be deemed to be a request
for hearing.
(b) In the answer, the Defendant:
[[Page 78]]
(1) Will admit or deny each of the allegations of liability Made in
the Complaint;
(2) Will state any defense on which the Defendant intends to rely;
(3) May state any reasons why the Defendant contends that the
penalties and assessments should be less than the statutory maximum; and
(4) Will state the name, address, and telephone number of the Person
authorized by the Defendant to act as Defendant's Representative, if
any.
(c) If the Defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the Defendant may, before the expiration of 30 days from service of the
Complaint, serve on the Reviewing Official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to serve an answer meeting the requirements of
paragraph (b) of this section. The Reviewing Official will file promptly
the Complaint, the general answer denying liability, and the request for
an extension of time as provided in Sec. 13.11. For good cause shown,
the ALJ may grant the Defendant up to 30 additional days from the
original due date within which to serve an answer meeting the
requirements of paragraph (b) of this section.
Sec. 13.10 Default upon failure to answer.
(a) If the Defendant does not answer within the time prescribed in
Sec. 13.9(a), the Reviewing Official may refer the Complaint to an ALJ
by filing the Complaint and a Statement that Defendant has failed to
answer on time.
(b) Upon the referral of the Complaint, the ALJ will promptly serve
on Defendant in the manner prescribed in Sec. 13.8, a notice that an
Initial Decision will be issued under this section.
(c) In addition, the ALJ will assume the facts alleged in the
Complaint to be true, and, if such facts establish liability under Sec.
13.3, the ALJ will issue an Initial Decision imposing the maximum amount
of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to
answer on time, the Defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section,
and the Initial Decision will become final and binding upon the parties
30 days after it is issued.
(e) If, before such an Initial Decision becomes final, the Defendant
files a motion seeking to reopen on the grounds that extraordinary
circumstances prevented the Defendant from answering, the Initial
Decision will be stayed pending the ALJ's decision on the motion.
(f) If, on such motion, the Defendant can demonstrate extraordinary
circumstances excusing the failure to answer on time, the ALJ will
withdraw the Initial Decision in paragraph (c) of this section, if such
a decision has been issued, and will grant the Defendant an opportunity
to answer the Complaint.
(g) A decision of the ALJ denying a Defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
Sec. 13.38.
(h) The Defendant may appeal to the Authority Head the decision
denying a motion to reopen by filing a notice of appeal in accordance
with Sec. 13.26 within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal will stay the Initial Decision until
the Authority Head decides the issue.
(i) If the Defendant files a timely notice of appeal with the
Authority Head, the ALJ will forward the record of the proceeding to the
Authority Head.
(j) The Authority Head will decide expeditiously whether
extraordinary circumstances excuse the Defendant's failure to answer on
time based solely on the record before the ALJ.
(k) If the Authority Head decides that extraordinary circumstances
excused the Defendant's failure to answer on time, the Authority Head
will remand the case to the ALJ with instructions to grant the Defendant
an opportunity to answer.
(l) If the Authority Head decides that the Defendant's failure to
answer on time is not excused, the Authority Head will reinstate the
Initial Decision of the ALJ, which will become final and binding upon
the parties 30 days after the Authority Head issues such decision.
[[Page 79]]
Sec. 13.11 Referral of Complaint and answer to the ALJ.
Upon receipt of an answer, the Reviewing Official will refer the
matter to an ALJ by filing the Complaint and answer in accordance with
Sec. 13.26.
Sec. 13.12 Notice of hearing.
(a) When the ALJ receives the Complaint and answer, the ALJ will
promptly serve a notice of hearing upon the Defendant in the manner
prescribed by Sec. 13.8.
(b) Such notice will include:
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the Representative of
the Government and of the Defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
Sec. 13.13 Parties to the hearing.
(a) The parties to the hearing will be the Defendant and the
Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
Sec. 13.14 Separation of functions.
(a) The Investigating Official, the Reviewing Official, and any
employee or agent of the Authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case:
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the Initial Decision or the review of
the Initial Decision by the Authority Head, except as a witness or a
Representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b) The ALJ will not be responsible to, or subject to the
supervision or direction of, the Investigating Official or the Reviewing
Official.
(c) Except as provided in paragraph (a) of this section, the
Representative for the Government may be employed anywhere in the
Authority, including in the offices of either the Investigating Official
or the Reviewing Official.
Sec. 13.15 Ex parte contacts.
No party or Person (except employees of the ALJ's office) will
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a Person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 13.16 Disqualification of Reviewing Official or ALJ.
(a) A Reviewing Official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file a motion for disqualification of a Reviewing
Official or an ALJ. Such motion will be accompanied by an affidavit
alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit will be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections will be deemed waived.
(d) Such affidavit will state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It will be accompanied by a certificate of the Representative of
record that it is Made in good faith.
(e)(1) If the ALJ determines that a Reviewing Official is
disqualified, the ALJ will dismiss the Complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case will be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the Authority Head may
determine the matter only as part of his or her review of the Initial
Decision upon appeal, if any.
[[Page 80]]
Sec. 13.17 Rights of parties.
Except as otherwise limited by this part, all parties may:
(a) Be accompanied, represented, and advised by a Representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which will be Made part of
the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
Sec. 13.18 Authority of the ALJ.
(a) The ALJ will conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is Made.
(b) The ALJ has the authority to:
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of Documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
Representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
Person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to Make any determinations
regarding the validity of treaties or other international agreements,
Federal statutes or regulations, or Departmental Orders or Directives.
Sec. 13.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ will schedule at least one
prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite Statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of Documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
Sec. 13.20 Disclosure of Documents.
(a) Upon written request to the Reviewing Official, the Defendant
may review, at a time and place convenient to
[[Page 81]]
the Authority, any relevant and material Documents, transcripts,
records, and other materials that relate to the allegations set out in
the Complaint and upon which the findings and conclusions of the
Investigating Official under Sec. 13.4(b) are based, unless such
Documents are subject to a privilege under Federal law. Special
arrangements as to confidentiality may be required by the Reviewing
Official, who may also assert privilege or other related doctrines. Upon
payment of fees for duplication, the Defendant may obtain copies of such
Documents.
(b) Upon written request to the Reviewing Official, the Defendant
also may obtain a copy of all exculpatory information in the possession
of the Reviewing Official or Investigating Official relating to the
allegations in the Complaint, even if it is contained in a Document that
would otherwise be privileged. If the Document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the Reviewing
Official as described in Sec. 13.5 is not discoverable under any
circumstances.
(d) The Defendant may file a motion to compel disclosure of the
Documents subject to the provisions of this section. Such a motion may
only be filed following the serving of an answer pursuant to Sec. 13.9.
Sec. 13.21 Discovery.
(a) In general. (1) The following types of discovery are authorized:
(i) Requests for production of Documents for inspection and copying;
(ii) Requests for admissions of the authenticity of any relevant
Document or of the truth of any relevant fact;
(iii) Written interrogatories; and
(iv) Depositions.
(2) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ will regulate the timing of
discovery.
(b) Documents defined. (1) For the purpose of this section and
Sec. Sec. 13.22 and 13.23, the term Documents includes information,
documents, reports, answers, records, accounts, papers, and other data
and documentary evidence.
(2) Nothing in this part will be interpreted to require the creation
of a Document.
(c) Motions for discovery. (1) A party seeking discovery may file a
motion. Such a motion will be accompanied by a copy of the request for
production of Documents, request for admissions, or interrogatories or,
in the case of depositions, a summary of the scope of the proposed
deposition.
(2) Within ten days of service, a party may file an opposition to
the motion or a motion for protective order as provided in Sec. 13.24.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought:
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
Sec. 13.24.
(d) Depositions. (1) If a motion for deposition is granted, the ALJ
will issue a subpoena for the deponent, which may require the deponent
to produce Documents. The subpoena will specify the time and place at
which the deposition will be held. Deposition requests for senior level
DHS officials (including career and non-career senior executive level
employees) shall not be approved absent showing of compelling need that
cannot be met by any other means.
(2) The party seeking to depose will serve the subpoena in the
manner prescribed in Sec. 13.8.
(3) The deponent may file a motion to quash the subpoena or a motion
for a protective order within ten days of service. If the ALJ has not
acted on such a motion by the return date, such date will be suspended
pending the ALJ's final action on the motion.
(4) The party seeking to depose will provide for the taking of a
verbatim transcript of the deposition, which it will Make available to
all other parties for inspection and copying.
[[Page 82]]
(e) Each party will bear its own costs of discovery.
Sec. 13.22 Exchange of witness lists, Statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties will exchange witness lists, copies
of prior Statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written Statements that the
party intends to offer in lieu of live testimony in accordance with
Sec. 13.33(b). At the time the above Documents are exchanged, any party
that intends to rely on the transcript of deposition testimony in lieu
of live testimony at the hearing, if permitted by the ALJ, will provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ will not admit into evidence the
testimony of any witness whose name does not appear on the witness list
of any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
Documents exchanged in accordance with paragraph (a) of this section
will be deemed to be authentic for the purpose of admissibility at the
hearing.
Sec. 13.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
Individual at the hearing may request that the ALJ issue a subpoena.
Requests for witness testimony of senior level DHS officials (including
career and non-career senior executive level employees) shall not be
approved absent a showing of compelling need that cannot be met by any
other means.
(b) A subpoena requiring the attendance and testimony of an
Individual may also require the Individual to produce Documents at the
hearing.
(c) A party seeking a subpoena will file a written request therefore
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ for good cause shown. Such request will be
accompanied by a proposed subpoena, which will specify and Documents to
be produced and will designate the witnesses and describe the address
and location thereof with sufficient particularity to permit such
witnesses to be found.
(d) The subpoena will specify the time and place at which the
witness is to appear and any Documents the witness is to produce.
(e) The party seeking the subpoena will serve it in the manner
prescribed in Sec. 13.8. A subpoena on a party or upon an Individual
under the control of party may be served by first class mail.
(f) A party or the Individual to whom the subpoena is directed may
file a motion to quash the subpoena within ten days after service or on
or before the time specified in the subpoena for compliance if it is
less than ten days after service. If the ALJ has not acted on such a
motion by the return date, such date will be suspended pending the ALJ's
final action on the motion.
Sec. 13.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may Make any order that
justice requires to protect a party or Person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except Persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
[[Page 83]]
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; and
(9) That the parties simultaneously submit to the ALJ specified
Documents or information enclosed in sealed envelopes to be opened as
directed by the ALJ.
Sec. 13.25 Fees.
The party requesting a subpoena will pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage will accompany the subpoena when served,
except that when a subpoena is issued on behalf of the Authority, a
check for witness fees and mileage need not accompany the subpoena.
Sec. 13.26 Filing, form and service of papers.
(a) Filing and form. (1) Documents filed with the ALJ will include
an original and two copies.
(2) Every pleading and paper filed in the proceeding will contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., Motion to Quash
Subpoena).
(3) Every pleading and paper will be signed by, and will contain the
address and telephone number of, the party or the Person on whose behalf
the paper was filed, or his or her Representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
Representative or by proof that the Document was sent by certified or
registered mail.
(b) Service. A party filing a Document will, at the time of filing,
serve a copy of such Document on every other party. Service upon any
party of any Document other than those required to be served as
prescribed in Sec. 13.8 will be Made by delivering a copy, or by
placing a copy of the Document in the United States mail, postage
prepaid and addressed, to the party's last known address. When a party
is represented by a Representative, service will be Made upon such
Representative in lieu of the actual party.
(c) Proof of service. A certificate of the Individual serving the
Document by Personal delivery or by mail, setting forth the manner of
service, will be proof of service.
Sec. 13.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal Government,
in which event it includes the next business day.
(b) When the period of time allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal Government will be excluded from the computation.
(c) Where a Document has been served or issued by placing it in the
United States mail, an additional five days will be added to the time
permitted for any responses.
Sec. 13.28 Motions.
(a) Any application to the ALJ for an order or ruling will be by
motion. Motions will state the relief sought, the authority relied upon,
and the facts alleged, and will be filed and served on all other
parties.
(b) Except for motions Made during a prehearing conference or at the
hearing, all motions will be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for
filing response thereto has expired, except upon consent of the parties
or following a hearing on the motion, but may overrule or deny such
motion without awaiting a response.
(e) The ALJ will Make a reasonable effort to dispose of all
outstanding motions before the hearing begins.
[[Page 84]]
(f) Except as provided by Sec. Sec. 13.21(e)(3) and 13.23(f), which
concern subpoenas, the filing or pendency of a motion will not
automatically alter or extend a deadline or return date.
Sec. 13.29 Sanctions.
(a) The ALJ may sanction a Person, including any party or
Representative, for:
(1) Failing to comply with an order, rule, or procedure governing
the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Sanctions include but are not limited to those specifically set
forth in paragraphs (c), (d), and (e) of this section. Any such sanction
will reasonably relate to the severity and nature of the failure or
misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this
part begun by service of a notice of hearing, the ALJ may dismiss the
action or may issue an Initial Decision imposition penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other Document that is not filed in a timely fashion.
Sec. 13.30 The hearing and burden of proof.
(a) The ALJ will conduct a hearing on the record in order to
determine whether the Defendant is liable for a civil penalty or
assessment under Sec. 13.3 and, if so, the appropriate amount of any
such civil penalty or assessment considering any aggravating or
mitigating factors.
(b) The Authority will prove Defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The Defendant will prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing will be open to the public unless otherwise ordered
by the ALJ for good cause shown.
Sec. 13.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the Authority Head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, ordinarily double damages
and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the Authority Head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false fictitious, of fraudulent Claims or
Statements) charged in the Complaint:
(1) The number of false, fictitious, or fraudulent Claims or
Statements;
(2) The time period over which such Claims or Statements were Made;
(3) The degree of the Defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
Benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
[[Page 85]]
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations, including particularly the impact
on the intended beneficiaries of such programs;
(8) Whether the Defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the Defendant attempted to conceal the misconduct;
(10) The degree to which the Defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
Defendant, the extent to which the Defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the Defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the Defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the Defendant's sophistication with respect to it, including the extent
of the Defendant's prior participation in the program or in similar
transactions;
(15) Whether the Defendant has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
State, directly or indirectly; and
(16) The need to deter the Defendant and others from engaging in the
same or similar misconduct.
(c) Nothing in this section will be construed to limit the ALJ or
the Authority Head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
Sec. 13.32 Location of hearing.
(a) The hearing may be held:
(1) In any judicial district of the United States in which the
Defendant resides or transacts business;
(2) In any judicial district of the United States in which the Claim
or Statement in issue was Made; or
(3) In such other place as may be agreed upon by the Defendant and
the ALJ.
(b) Each party will have the opportunity to present written and oral
argument with respect to the location of the hearing.
(c) The hearing will be held at the place and at the time ordered by
the ALJ.
Sec. 13.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing will be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written Statement or deposition. Any such written Statement
must be provided to all other parties along with the last known address
of such witness, in a manner that allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written Statements of witnesses proposed to testify at the hearing
and deposition transcripts will be exchanged as provided in Sec.
13.22(a).
(c) The ALJ will exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the
ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ will permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the
facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceeding without regard to the scope of his or
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination will be
conducted in the manner of direct examination and may proceed by leading
questions only if the witness is a hostile witness, an adverse
[[Page 86]]
party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ will order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of:
(1) A party who is an Individual;
(2) In the case of a party that is not an Individual, an officer or
employee of the party;
(i) Appearing for the entity pro se; or
(ii) Designated by the party's Representative; or
(3) An Individual whose presence is shown by a party to be essential
to the presentation of its case, including an Individual employed by the
Government engaged in assisting the Representative for the Government.
Sec. 13.34 Evidence.
(a) The ALJ will determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ will not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g., to exclude unreliable
evidence.
(c) The ALJ will exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement will be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ will permit the parties to introduce rebuttal witnesses
and evidence.
(h) All Documents and other evidence offered or taken for the record
will be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to Sec. 13.24.
Sec. 13.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence
admitted at the hearing, and all papers and requests filed in the
proceeding constitute the record for the decision by the ALJ and the
Authority Head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to Sec. 13.24.
Sec. 13.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ will fix the
time for filing such briefs. Such briefs may be accompanied by proposed
findings of fact and conclusions of law. The ALJ may permit the parties
to file reply briefs.
Sec. 13.37 Initial Decision.
(a) The ALJ will issue an Initial Decision based only on the record,
which will contain findings of fact, conclusions of law, and the amount
of any penalties and assessments imposed.
(b) The findings of fact will include a finding on each of the
following issues:
(1) Whether the Claims or Statements identified in the Complaint, or
any portions thereof, violate Sec. 13.3;
(2) If the Person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in Sec. 13.31.
(c) The ALJ will promptly serve the Initial Decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ will at the same time
serve all parties with a Statement describing the right of any Defendant
determined to be liable for a civil penalty or assessment to file a
motion for reconsideration with the ALJ or a notice of appeal with the
Authority Head. If the ALJ fails to meet the deadline contained in this
paragraph, he or she will notify the parties of the reason for the delay
and will set a new deadline.
[[Page 87]]
(d) Unless the Initial Decision of the ALJ is timely appealed to the
Authority Head, or a motion for reconsideration of the Initial Decision
is timely filed, the Initial Decision will constitute the final decision
of the Authority Head and will be final and binding on the parties 30
days after it is issued by the ALJ.
Sec. 13.38 Reconsideration of Initial Decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the Initial Decision within 20
days of receipt of the Initial Decision. If service was Made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged errors. Such
motion will be accompanied by a supporting brief.
(c) Responses to such motions will be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an Initial
Decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised Initial Decision.
(f) If the ALJ denies a motion for reconsideration, the Initial
Decision will constitute the final decision of the Authority Head and
will be final and binding on the parties 30 days after the ALJ denies
the motion, unless the Initial Decision is timely appealed to the
Authority Head in accordance with Sec. 13.39.
(g) If the ALJ issues a revised Initial Decision, that decision will
constitute the final decision of the Authority Head and will be final
and binding on the parties 30 days after it is issued, unless it is
timely appealed to the Authority Head in accordance with Sec. 13.39.
Sec. 13.39 Appeal to Authority Head.
(a) Any Defendant who has served a timely answer and who is
determined in an Initial Decision to be liable for a civil penalty or
assessment may appeal such decision to the Authority Head by filing a
notice of appeal in accordance with this section and Sec. 13.26.
(b)(1) A notice of appeal may be filed at any time within 30 days
after the ALJ issues an Initial Decision. However, if another party
files a motion for reconsideration under Sec. 13.38, consideration of
the appeal will be stayed automatically pending resolution of the motion
for reconsideration.
(2) If a Defendant files a timely motion for reconsideration, a
notice of appeal may be filed within 30 days after the ALJ denies the
motion or issues a revised Initial Decision, whichever applies.
(3) The Authority Head may extend the initial 30-day period for an
additional 30 days if the Defendant files with the Authority Head a
request for an extension within the initial 30-day period and shows good
cause.
(c) If the Defendant files a timely notice of appeal and the time
for filing motions for reconsideration under Sec. 13.38 has expired,
the ALJ will forward two copies of the notice of appeal to the Authority
Head, and will forward or Make available the record of the proceeding to
the Authority Head.
(d) A notice of appeal will be accompanied by a written brief
specifying exceptions to the Initial Decision and reasons supporting the
exceptions.
(e) The Representative for the Government may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the Authority
Head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the Initial Decision, the Authority Head will not
consider any objection that was not raised before the ALJ unless a
demonstration is Made of extraordinary circumstances causing the failure
to raise the objection.
(i) If any party demonstrates to the satisfaction of the Authority
Head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the Authority Head will remand the matter to
the ALJ for consideration of such additional evidence.
(j) The Authority Head may affirm, reduce, reverse, compromise,
remand,
[[Page 88]]
or settle any penalty or assessment determined by the ALJ in any Initial
Decision.
(k) The Authority Head will promptly serve each party to the appeal
with a copy of the decision of the Authority Head and with a Statement
describing the right of any Person determined to be liable for a penalty
or assessment to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a Defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the Authority Head
serves the Defendant with a copy of the Authority Head's decision, a
determination that a Defendant is liable under Sec. 13.3 is final and
is not subject to judicial review.
Sec. 13.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the Authority Head a
written finding that continuation of the administrative process
described in this part with respect to a Claim or Statement may
adversely affect any pending or potential criminal or civil action
related to such Claim or Statement, the Authority Head will stay the
process immediately. The Authority Head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
Sec. 13.41 Stay pending appeal.
(a) An Initial Decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the Authority Head.
(b) No administrative stay is available following a final decision
of the Authority Head.
Sec. 13.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the Authority Head imposing penalties or assessments under
this part and specifies the procedures for such review.
Sec. 13.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize
actions for collection of civil penalties and assessments imposed under
this part and specify the procedures for such actions.
Sec. 13.44 Right to administrative offset.
The amount of any penalty or assessment that has become final, or
for which a judgment has been entered under Sec. 13.42 or Sec. 13.43,
or any amount agreed upon in a compromise or settlement under Sec.
13.46, may be collected by administrative offset under 31 U.S.C. 3716,
except that an administrative offset may not be Made under that
subsection against a refund of an overpayment of Federal taxes, then or
later owing by the United States to the Defendant.
Sec. 13.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part will be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
Sec. 13.46 Compromise or settlement.
(a) Parties may Make offers of compromise or settlement at any time.
(b) The Reviewing Official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
Reviewing Official is permitted to issue a Complaint and before the date
on which the ALJ issues an Initial Decision.
(c) The Authority Head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an Initial Decision, except during the pendency of any review
under Sec. 13.42 or during the pendency of any action to collect
penalties and assessments under Sec. 13.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
Sec. 13.42 or of any action to recover penalties and assessments under
31 U.S.C. 3806.
(e) The Investigating Official may recommend settlement terms to the
[[Page 89]]
Reviewing Official, the Authority Head, or the Attorney General, as
appropriate. The Reviewing Official may recommend settlement terms to
the Authority Head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing and signed by
all parties and their Representatives.
Sec. 13.47 Limitations.
(a) The notice of hearing with respect to a Claim or Statement must
be served in the manner specified in Sec. 13.8 within 6 years after the
date on which such Claim or Statement is Made.
(b) If the Defendant fails to serve a timely answer, service of a
notice under Sec. 13.10(b) will be deemed a notice of hearing for
purposes of this section.
(c) The statute of limitations may be extended by agreement of the
parties.
PART 15_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOMELAND SECURITY--Table of Contents
Sec.
15.1 Purpose.
15.2 Application.
15.3 Definitions.
15.10 Self-evaluation.
15.11 Notice.
15.30 General prohibitions against discrimination.
15.40 Employment.
15.49 Program accessibility; discrimination prohibited.
15.50 Program accessibility; existing facilities.
15.51 Program accessibility; new construction and alterations.
15.60 Communications.
15.70 Compliance procedures.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5
U.S.C. 301; 29 U.S.C. 794.
Source: 68 FR 10886, Mar. 6, 2003, unless otherwise noted.
Sec. 15.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973 (``Section 504''), as amended by section 119
of the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, which prohibits discrimination on the
basis of disability in programs or activities conducted by Executive
agencies. The provisions established by this part shall be effective for
all components of the Department, including all Department components
that are transferred to the Department, except to the extent that a
Department component already has existing section 504 regulations.
Sec. 15.2 Application.
This part applies to all programs or activities conducted by the
Department of Homeland Security (Department), except for programs or
activities conducted outside the United States that do not involve
individuals with a disability in the United States.
Sec. 15.3 Definitions.
For purposes of this part:
(a) Auxiliary aids means services or devices that enable persons
with impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Department. For example, auxiliary aids
useful for persons with impaired vision include readers, materials in
Braille, audio recordings and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunications devices for deaf persons (TTYs), interpreters,
notetakers, written materials and other similar services and devices.
(b) Complete complaint means a written statement that contains the
complainant's name and address, and describes the Department's alleged
discriminatory action in sufficient detail to inform the Department of
the nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes of individuals with
disabilities shall also identify (where possible) the alleged victims of
discrimination.
(c) Facility means all or any portion of a building, structure,
equipment, road, walk, parking lot, rolling stock, or other conveyance,
or other real or personal property.
[[Page 90]]
(d) Individual with a disability means any person who has a physical
or mental impairment that substantially limits one or more of the
individual's major life activities, has a record of such an impairment,
or is regarded as having such an impairment. For purposes of this
definition:
(1) Physical or mental impairment includes:
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs, cardiovascular; reproductive, digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more of the individual's major life
activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Department 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 (e)(1) of
this section but is treated by the Department as having such an
impairment.
(e) Qualified individual with a disability means:
(1) With respect to a Department program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with a disability 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
Department can demonstrate would result in a fundamental alteration in
the nature of the program; and
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) With respect to employment, an individual with a disability who
satisfies the requisite skill, experience, education and other job-
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position.
(f) Section 504 means section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794), as amended. As used in this part, section 504 applies
only to programs or activities conducted by Executive agencies and not
to federally assisted programs.
Sec. 15.10 Self-evaluation.
(a) Except as provided in paragraph (d) of this section, the
Department shall, not later than March 7, 2005, evaluate its current
policies and practices, and the effects thereof, to determine if they
meet the requirements of this part. To the extent modification of any
such policy and practice is required, the Department shall proceed to
make the necessary modifications.
(b) The Department shall provide an opportunity to interested
persons, including individuals with a disability or organizations
representing individuals with disabilities, to participate in the self-
evaluation process.
(c) The Department shall, until three years following the completion
of the self-evaluation, maintain on file and make available for public
inspection:
[[Page 91]]
(1) A description of areas examined and any problems identified;
(2) A description of any modifications made; and
(3) A list of participants in the self-evaluation process.
(d) If a component within the Department has already complied with
the self-evaluation requirement of a regulation implementing section
504, then the requirements of this section shall apply to only those
programs and activities conducted by that component that were not
included in the previous self-evaluation.
Sec. 15.11 Notice.
The Department shall make available to all Department employees and
interested persons information regarding the provisions of this part and
its applicability to the programs or activities conducted by the
Department, and make such information available to them in such a manner
as is necessary to apprise them of the protections against
discrimination assured them by section 504 and this part.
Sec. 15.30 General prohibitions against discrimination.
(a) No qualified individual with a disability in the United States,
shall, by reason of his or her disability, be excluded from the
participation in, be denied benefits of, or otherwise be subjected to
discrimination under any program or activity conducted by the
Department.
(b)(1) The Department, in providing any aid, benefit, or service,
may not directly or through contractual, licensing, or other
arrangements, on the basis of disability:
(i) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability 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 a disability 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 a disability or to any class of individuals with a
disability than is provided to others unless such action is necessary to
provide qualified individuals with a disability with aid, benefits or
services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for individuals with a disability and for
nondisabled persons, but must afford individuals with a disability equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement in the most integrated setting
appropriate to the individual's needs.
(3) Even if the Department is permitted, under paragraph (b)(1)(iv)
of this section, to operate a separate or different program for
individuals with a disability or for any class of individuals with a
disability, the Department must permit any qualified individual with a
disability who wishes to participate in the program that is not separate
or different to do so.
(4) The Department 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 a disability to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with a disability.
(5) The Department may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
[[Page 92]]
(i) Exclude individuals with a disability from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the Department; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with a
disability.
(6) The Department, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with a disability to
discrimination on the basis of disability.
(7) The Department may not administer a licensing or certification
program in a manner that subjects qualified individuals with a
disability to discrimination on the basis of disability, nor may the
Department establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
a disability to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by the
Department are not, themselves, covered by this part.
(c) The exclusion of nondisabled persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with a disability or the exclusion of a specific class of individuals
with a disability from a program limited by Federal statute or Executive
order to a different class of individuals with a disability is not
prohibited by this part.
(d) The Department shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with a disability.
Sec. 15.40 Employment.
No qualified individual with a disability shall, on the basis of
that disability, be subjected to discrimination in employment under any
program or activity conducted by the Department. 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 1614, shall apply to employment of Federally
conducted programs or activities.
Sec. 15.49 Program accessibility; discrimination prohibited.
Except as otherwise provided in Sec. 15.50, no qualified individual
with a disability shall, because the Department's facilities are
inaccessible to or unusable by individuals with a disability, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the Department.
Sec. 15.50 Program accessibility; existing facilities.
(a) General. The Department shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with a disability. This
paragraph (a) does not require the Department:
(1) To make structural alterations in each of its existing
facilities in order to make them accessible to and usable by individuals
with a disability where other methods are effective in achieving
compliance with this section; or
(2) 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
Department personnel believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the Department has the burden of
proving that compliance with this paragraph (a) of this section would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the Secretary of
Homeland Security (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 Department shall
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure
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that individuals with a disability receive the benefits and services of
the program or activity.
(b) Methods. The Department may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with a disability. The Department, in making alterations to
existing buildings, shall meet accessibility requirements to the extent
required by the Architectural Barriers Act of 1968, as amended (42
U.S.C. 4151-4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section,
the Department shall give priority to those methods that offer programs
and activities to qualified individuals with a disability in the most
integrated setting appropriate.
(c) Time period for compliance. The Department shall comply with the
obligations established under this section not later than May 5, 2003,
except that where structural changes in facilities are undertaken, such
changes shall be made not later than March 6, 2006, but in any event as
expeditiously as possible. If a component within the Department has
already complied with the accessibility requirements of a regulation
implementing section 504, then the provisions of this paragraph shall
apply only to facilities for that agency's programs and activities that
were not previously made readily accessible to and usable by individuals
with disabilities in compliance with that regulation.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Department shall develop not later than September 8, 2003, a transition
plan setting forth the steps necessary to complete such changes. The
Department shall provide an opportunity to interested persons, including
individuals with disabilities or organizations representing individuals
with disabilities, to participate in the development of the transition
plan by submitting comments (both telephonic and written). A copy of the
transition plan shall be made available for public inspection. If a
component of the Department has already complied with the transition
plan requirement of a regulation implementing section 504, then the
requirements of this paragraph shall apply only to the agency's
facilities for programs and activities that were not included in the
previous transition plan. The plan shall at a minimum:
(1) Identify physical obstacles in the Department's facilities that
limit the physical accessibility of its programs or activities to
individuals with disabilities;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 15.51 Program accessibility; new construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Department shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with a disability. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 through 101-19.607 apply to buildings
covered by this section.
Sec. 15.60 Communications.
(a) The Department shall take appropriate steps to effectively
communicate with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Department shall furnish appropriate auxiliary aids where
necessary to afford an individual with a
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disability an equal opportunity to participate in, and enjoy the
benefits of, a program or activity conducted by the Department.
(i) In determining what type of auxiliary aid is necessary, the
Department shall give primary consideration to the requests of the
individual with a disability.
(ii) The Department need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature to applicants or participants in programs.
(2) Where the Department communicates with applicants and
beneficiaries by telephone, the Department shall use telecommunication
devices for deaf persons (TTYs) or equally effective telecommunication
systems to communicate with persons with impaired hearing.
(b) The Department shall make available to interested persons,
including persons with impaired vision or hearing, information as to the
existence and location of accessible services, activities, and
facilities.
(c) The Department shall post notices at a primary entrance to each
of its inaccessible facilities, directing users to an accessible
facility, or 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 Department 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.
(e) In those circumstances where Department personnel believe that
the proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the
Department has the burden of proving that compliance with this section
would result in such alteration or burdens. The decision that compliance
would result in such alteration or burdens must be made by the Secretary
of Homeland Security (or his or her designee) after considering all
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 Department 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 a
disability receive the benefits and services of the program or activity.
Sec. 15.70 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs and activities conducted by the Department.
(b) The Department 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 1614.
(c) All other complaints alleging violations of section 504 may be
sent to the Officer for Civil Rights and Civil Liberties, Department of
Homeland Security, Washington, DC 20528. The Officer for Civil Rights
and Civil Liberties shall be responsible for coordinating implementation
of this section.
(d)(1) Any person who believes that he or she has been subjected to
discrimination prohibited by this part may by him or herself, or by his
or her authorized representative, file a complaint. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or the authorized representative of a member of that class may file a
complaint.
(2) The Department shall accept and investigate all complete
complaints over which it has jurisdiction.
(3) All complete complaints must be filed within 180 days of the
alleged act of discrimination. The Department may extend this time
period for good cause.
(e) If the Department 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
[[Page 95]]
the appropriate entity of the Federal government.
(f) The Department 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 disabilities.
(g)(1) Not later than 180 days from the receipt of a complete
complaint over which it has jurisdiction, the Department shall notify
the complainant of the results of the investigation in a letter
containing:
(i) Findings of fact and conclusions of law;
(ii) A description of a remedy for each violation found; and
(iii) A notice of the right to appeal.
(2) Department employees are required to cooperate in the
investigation and attempted resolution of complaints. Employees who are
required to participate in any investigation under this section shall do
so as part of their official duties and during the course of regular
duty hours.
(3) If a complaint is resolved informally, the terms of the
agreement shall be reduced to writing and made part of the complaint
file, with a copy of the agreement provided to the complainant. The
written agreement shall describe the subject matter of the complaint and
any corrective action to which the parties have agreed.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant not later than 60 days after
receipt from the Department of the letter required by paragraph (g)(1)
of this section. The Department may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Officer
for Civil Rights and Civil Liberties, or designee thereof, who will
issue the final agency decision which may include appropriate corrective
action to be taken by the Department.
(j) The Department shall notify the complainant of the results of
the appeal within 30 days of the receipt of the appeal. If the
Department determines that it needs additional information from the
complainant, it shall have 30 days from the date it received the
additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended for an individual case when the Officer for Civil Rights
and Civil Liberties determines that there is good cause, based on the
particular circumstances of that case, for the extension.
(l) The Department may delegate its authority for conducting
complaint investigations to other Federal agencies and may contract with
nongovernment investigators to perform the investigation, but the
authority for making the final determination may not be delegated to
another agency.
PART 17_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
17.100 Purpose and effective date.
17.105 Definitions.
17.110 Remedial and affirmative action and self-evaluation.
17.115 Assurance required.
17.120 Transfers of property.
17.125 Effect of other requirements.
17.130 Effect of employment opportunities.
17.135 Designation of responsible employee and adoption of grievance
procedures.
17.140 Dissemination of policy.
Subpart B_Coverage
17.200 Application.
17.205 Educational institutions and other entities controlled by
religious organizations.
17.210 Military and merchant marine educational institutions.
17.215 Membership practices of certain organizations.
17.220 Admissions.
17.225 Educational institutions eligible to submit transition plans.
17.230 Transition plans.
17.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
17.300 Admission.
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17.305 Preference in admission.
17.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
17.400 Education programs or activities.
17.405 Housing.
17.410 Comparable facilities.
17.415 Access to course offerings.
17.420 Access to schools operated by LEAs.
17.425 Counseling and use of appraisal and counseling materials.
17.430 Financial assistance.
17.435 Employment assistance to students.
17.440 Health and insurance benefits and services.
17.445 Marital or parental status.
17.450 Athletics.
17.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
17.500 Employment.
17.505 Employment criteria.
17.510 Recruitment.
17.515 Compensation.
17.520 Job classification and structure.
17.525 Fringe benefits.
17.530 Marital or parental status.
17.535 Effect of state or local law or other requirements.
17.540 Advertising.
17.545 Pre-employment inquiries.
17.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
17.600 Notice of covered programs.
17.605 Enforcement procedures.
17.635 Forms and instructions; coordination.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5
U.S.C. 301; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 68 FR 10892, Mar. 6, 2003, unless otherwise noted.
Subpart A_Introduction
Sec. 17.100 Purpose and effective date.
(a) The purpose of these Title IX regulations is to effectuate Title
IX of the Education Amendments of 1972, as amended (except sections 904
and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686,
1687, 1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be March 6, 2003.
(b) The provisions established by this part shall be effective for
all components of the Department, including all Department components
that are transferred to the Department, except to the extent that a
Department component already has existing Title IX regulations.
Sec. 17.105 Definitions.
As used in these Title IX regulations, the term:
(a) Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
(b) Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
(c) Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
(d) Department means Department of Homeland Security.
(e) Designated agency official means the Officer for Civil Rights
and Civil Liberties, or the designee thereof.
(f) Educational institution means a local educational agency (LEA)
as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
(g) Federal financial assistance means any of the following, when
authorized or extended under a law administered
[[Page 97]]
by the Federal agency that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
(h) Institution of graduate higher education means an institution
that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
(i) Institution of professional education means an institution
(except any institution of undergraduate higher education) that offers a
program of academic study that leads to a first professional degree in a
field for which there is a national specialized accrediting agency
recognized by the Secretary of Education.
(j) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree;
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
(k) Institution of vocational education means a school or
institution (except an institution of professional or graduate or
undergraduate higher education) that has as its primary purpose
preparation of students to pursue a technical, skilled, or semi-skilled
occupation or trade, or to pursue study in a technical field, whether or
not the school or institution offers certificates, diplomas, or degrees
and whether or not it offers full-time study.
(l) Recipient means any State or political subdivision thereof or
any instrumentality of a State or political subdivision thereof, any
public or private agency, institution, or organization, or other entity,
or any person, to whom Federal financial assistance is extended directly
or through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
(m) Reviewing authority means that component of the Department
delegated authority to review the decisions of hearing officers in cases
arising under these Title IX regulations.
(n) Secretary means Secretary of the Department of Homeland
Security.
(o) Student means a person who has gained admission.
[[Page 98]]
(p) Title IX means Title IX of the Education Amendments of 1972,
Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C.
1681-1688) (except sections 904 and 906 thereof), as amended by section
3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
(q) Title IX regulations means the provisions of this part.
(r) Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972 (20 U.S.C. 1681(a)(2)), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 17.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of March 6, 2003:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 17.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 17.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether
[[Page 99]]
occurring prior to or subsequent to the submission to the designated
agency official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 17.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 17.205 through 17.235(a).
Sec. 17.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 17.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 17.135 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts
[[Page 100]]
to comply with and carry out its responsibilities under these Title IX
regulations, including any investigation of any complaint communicated
to such recipient alleging its noncompliance with these Title IX
regulations or alleging any actions that would be prohibited by these
Title IX regulations. The recipient shall notify all its students and
employees of the name, office address, and telephone number of the
employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 17.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 17.300 through 17.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 17.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of March 6, 2003 or of
the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 17.200 Application.
Except as provided in Sec. Sec. 17.205 through 17.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 17.205 Educational institutions and other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of
[[Page 101]]
an educational institution or other entity that is controlled by a
religious organization to the extent that application of these Title IX
regulations would not be consistent with the religious tenets of such
organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 17.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 17.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1986 (26 U.S.C. 501(a)), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 17.220 Admissions.
(a) General. Admissions to educational institutions prior to June
24, 1973, are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 17.225, 17.230, and 17.300 through 17.310, each
administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Sec. Sec. 17.300 through 17.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 17.300
through 17.310 apply to each recipient. A recipient to which Sec. Sec.
17.300 through 17.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 17.300 through
17.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 17.300 through 17.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Sections
17.300 through 17.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 17.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 17.300 through 17.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 17.300 through
17.310.
[[Page 102]]
Sec. 17.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 17.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all such
units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 17.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 17.300 through
17.310 unless such treatment is necessitated by an obstacle identified
in paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 17.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 17.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) For purposes of these Title IX regulations, program or activity
or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i)
[[Page 103]]
through (iv) of this section, any part of which is extended Federal
financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship:
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a program or activity subject to these
Title IX regulations if the college, university, or other institution
receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 17.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 17.300 through 17.310 apply, except as
provided in Sec. Sec. 17.225 and 17.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 17.300 through 17.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
[[Page 104]]
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 17.300 through 17.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 17.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 17.305 Preference in admission.
A recipient to which Sec. Sec. 17.300 through 17.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Sec. Sec. 17.300 through 17.310.
Sec. 17.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
17.300 through 17.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 17.110(a), and may choose to undertake
such efforts as affirmative action pursuant to Sec. 17.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 17.300 through 17.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 17.300 through 17.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 17.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
17.400 through 17.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 17.300 through 17.310 do not
apply, or an entity, not a recipient, to which Sec. Sec. 17.300 through
17.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 17.400
through 17.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such
[[Page 105]]
person satisfies any requirement or condition for the provision of such
aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees; or
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 17.405 Housing.
(a) General. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
[[Page 106]]
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 17.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 17.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to physical education classes and activities at
the elementary school level, the recipient shall comply fully with this
section as expeditiously as possible, but in no event later than one
year from March 6, 2003. With respect to physical education classes and
activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from March 6, 2003.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 17.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 17.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is
[[Page 107]]
necessary to assure itself that such disproportion is not the result of
discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 17.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex.
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 17.450.
Sec. 17.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
17.500 through 17.550.
Sec. 17.440 Health and insurance benefits and services.
Subject to Sec. 17.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall
[[Page 108]]
not discriminate on the basis of sex, or provide such benefit, service,
policy, or plan in a manner that would violate Sec. Sec. 17.500 through
17.550 if it were provided to employees of the recipient. This section
shall not prohibit a recipient from providing any benefit or service
that may be used by a different proportion of students of one sex than
of the other, including family planning services. However, any recipient
that provides full coverage health service shall provide gynecological
care.
Sec. 17.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 17.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 17.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the
[[Page 109]]
designated agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services; and
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from March
6, 2003. A recipient that operates or sponsors interscholastic,
intercollegiate, club, or intramural athletics at the secondary or
postsecondary school level shall comply fully with this section as
expeditiously as possible but in no event later than three years from
March 6, 2003.
Sec. 17.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 17.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefore, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 17.500
through 17.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. Sections 17.500 through 17.550 apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
[[Page 110]]
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 17.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 17.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 17.500 through 17.550.
Sec. 17.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 17.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 17.550.
Sec. 17.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, the term fringe benefits means any medical, hospital,
accident, life insurance, or retirement benefit, service, policy or
plan, any profit-sharing or bonus plan, leave, and any other benefit or
service of employment not subject to the provisions of Sec. 17.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
[[Page 111]]
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 17.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 17.235(d),
a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 17.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 17.500 through 17.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 17.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 17.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 17.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
17.500 through 17.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
[[Page 112]]
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F_Procedures
Sec. 17.600 Notice of covered programs.
Within 60 days of March 6, 2003, each component of the Department
that awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such component shall periodically republish the notice of covered
programs to reflect changes in covered programs. Copies of this notice
also shall be made available upon request to the Department's office
that enforces Title IX.
Sec. 17.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 6 CFR part 21.
Sec. 17.635 Forms and instructions; coordination.
(a) Forms and instructions. The designated agency official shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating these Title IX
regulations.
(b) Supervision and coordination. The designated agency official may
from time to time assign to officials of the Department, or to officials
of other departments or agencies of the Government with the consent of
such departments or agencies, responsibilities in connection with the
effectuation of the purposes of Title IX and these Title IX regulations
(other than responsibility for review as provided in Sec. 17.625(e)),
including the achievements of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of Title IX and these Title IX regulations
to similar programs and in similar situations. Any action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this section shall have the same effect as though such action had
been taken by the designated official of this Department.
PART 21_NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE DEPARTMENT
OF HOMELAND SECURITY--Table of Contents
Sec.
21.1 Purpose.
21.3 Application.
21.4 Definitions.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance Is To
Provide Employment
Authority: 5 U.S.C. 310, 42 U.S.C. 2000d-2000d-7.
Source: 68 FR 10904, Mar. 6, 2003, unless otherwise noted.
Sec. 21.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (the Act) to the end that no person in
the United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits of,
[[Page 113]]
or be otherwise subjected to discrimination under any program or
activity receiving Federal financial assistance from the Department of
Homeland Security. The provisions established by this part shall be
effective for all components of the Department, including all Department
components that are transferred to the Department, except to the extent
that a Department component already has existing title VI regulations.
Sec. 21.3 Application.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the types of Federal financial assistance listed in appendix A
to this part. It also applies to money paid, property transferred, or
other Federal financial assistance extended after the effective date of
this part pursuant to an application approved before that effective
date. This part does not apply to:
(1) Any Federal financial assistance by way of insurance or guaranty
contracts;
(2) Money paid, property transferred, or other assistance extended
before the effective date of this part, except where such assistance was
subject to the title VI regulations of any agency whose responsibilities
are now exercised by this Department;
(3) Any assistance to any individual who is the ultimate
beneficiary; or
(4) Any employment practice, under any such program, of any
employer, employment agency, or labor organization, except to the extent
described in Sec. 21.5(c). The fact that a type of Federal financial
assistance is not listed in appendix A to this part shall not mean, if
title VI of the Act is otherwise applicable, that a program is not
covered. Other types of Federal financial assistance under statutes now
in force or hereinafter enacted may be added to appendix A to this part.
(b) In any program receiving Federal financial assistance in the
form, or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving that assistance,
the nondiscrimination requirement of this part shall extend to any
facility located wholly or in part in that space.
Sec. 21.4 Definitions.
Unless the context requires otherwise, as used in this part:
(a) Applicant means a person who submits an application, request, or
plan required to be approved by the Secretary, or designee thereof, or
by a primary recipient, as a condition to eligibility for Federal
financial assistance, and application means such an application,
request, or plan.
(b) Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in
property;
(3) The detail of Federal personnel;
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient; and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(d) Primary recipient means any recipient that is authorized or
required to extend Federal financial assistance to another recipient.
(e) Program or activity and program mean all of the operations of
any entity described in paragraphs (e)(1) through (4) of this section,
any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or
[[Page 114]]
agency (and each other State or local government entity) to which the
assistance is extended, in the case of assistance to a State or local
government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (e)(1), (2), or (3) of this section.
(f) Recipient may mean any State, territory, possession, the
District of Columbia, or the Commonwealth of Puerto Rico, or any
political subdivision thereof, or instrumentality thereof, any public or
private agency, institution, or organization, or other entity, or any
individual, in any State, territory, possession, the District of
Columbia, or the Commonwealth of Puerto Rico, to whom Federal financial
assistance is extended, directly or through another recipient, including
any successor, assignee, or transferee thereof, but such term does not
include any ultimate beneficiary.
(g) Secretary means the Secretary of the Department of Homeland
Security or, except in Sec. 21.17(e), any delegatee of the Secretary.
Sec. 21.5 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on the grounds of race, color, or national origin:
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program; or
(vii) Deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of person to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of persons to be
afforded an opportunity to participate in any such program; may not,
directly or through contractual or other arrangements,
[[Page 115]]
utilize criteria or methods of administration which have the effect of
subjecting persons to discrimination because of their race, color, or
national origin or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program with respect
to individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding persons from, denying them the benefits of, or subjecting them
to discrimination under any program to which this regulation applies, on
the grounds of race, color, or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
include any service, financial aid, or other benefit provided in or
through a facility provided with the aid of Federal financial
assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) This part does not prohibit the consideration of race, color, or
national origin if the purpose and effect are to remove or overcome the
consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the grounds of race, color, or national
origin. Where prior discriminatory practice or usage tends, on the
grounds of race, color, or national origin to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part applies,
the applicant or recipient must take affirmative action to remove or
overcome the effects of the prior discriminatory practice or usage. Even
in the absence of prior discriminatory practice or usage, a recipient in
administering a program or activity to which this part applies, may take
affirmative action to assure that no person is excluded from
participation in or denied the benefits of the program or activity on
the grounds of race, color, or national origin.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient subject to this part shall not,
directly or through contractual or other arrangements, subject a person
to discrimination on the ground of race, color, or national origin in
its employment practices under such program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay or other forms of
compensation or benefits, selection for training or apprenticeship, and
use of facilities). Such recipient shall take affirmative action to
insure that applicants are employed, and employees are treated during
employment, without regard to their race, color, or national origin. The
requirements applicable to construction employment under any such
program shall be those specified in or pursuant to Part III of Executive
Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by the Department which have as a primary objective the
providing of employment include those set forth in appendix B to this
part.
(3) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the grounds of race,
color, or national origin in the employment practices of the recipient
or other persons subject to the regulation tends, on the grounds of
race, color, or national origin, to exclude individuals from
participation in, deny them the benefits of, or subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) of this section shall apply to the
employment practices of the recipient or other persons subject to the
regulation, to the extent necessary to assure equality of opportunity
to, and nondiscriminatory treatment of, beneficiaries.
[[Page 116]]
(d) Facility location or site. A recipient may not make a selection
of a site or location of a facility if the purpose of that selection, or
its effect when made, is to exclude individuals from participation in,
to deny them the benefits of, or to subject them to discrimination under
any program or activity to which this rule applies, on the grounds of
race, color, or national origin; or if the purpose is to, or its effect
when made will substantially impair the accomplishment of the objectives
of this part.
Sec. 21.7 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to which this part applies, except an application to which paragraph (b)
of this section applies, and every application for Federal financial
assistance to provide a facility shall, as a condition to its approval
and the extension of any Federal financial assistance pursuant to the
application, contain or be accompanied by, an assurance that the program
will be conducted or the facility operated in compliance with all
requirements imposed by or pursuant to this part. Every award of Federal
financial assistance shall require the submission of such an assurance.
In the case where the Federal financial assistance is to provide or is
in the form of personal property, or real property or interest therein
or structures thereon, the assurance shall obligate the recipient, or,
in the case of a subsequent transfer, the transferee, for the period
during which the property is used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits, or for as long as the
recipient retains ownership or possession of the property, whichever is
longer. In all other cases the assurance shall obligate the recipient
for the period during which Federal financial assistance is extended to
the program. The Secretary shall specify the form of the foregoing
assurances, and the extent to which like assurances will be required of
subgrantees, contractors and subcontractors, transferees, successors in
interest, and other participants. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
(2) In the case where Federal financial assistance is provided in
the form of a transfer of real property, structures, or improvements
thereon, or interest therein, from the Federal Government, the
instrument effecting or recording the transfer shall contain a covenant
running with the land assuring nondiscrimination for the period during
which the real property is used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. Where no transfer of property
or interest therein from the Federal Government is involved, but
property is acquired or improved with Federal financial assistance, the
recipient shall agree to include such covenant in any subsequent
transfer of such property. When the property is obtained from the
Federal Government, such covenant may also include a condition coupled
with a right to be reserved by the Department to revert title to the
property in the event of a breach of the covenant where, in the
discretion of the Secretary, such a condition and right of reverter is
appropriate to the statute under which the real property is obtained and
to the nature of the grant and the grantee. In such event if a
transferee of real property proposes to mortgage or otherwise encumber
the real property as security for financing construction of new, or
improvement of existing, facilities on such property for the purposes
for which the property was transferred, the Secretary may agree, upon
request of the transferee and if necessary to accomplish such financing,
and upon such conditions as he deems appropriate, to subordinate such
right of reversion to the lien of such mortgage or other encumbrance.
(b) Continuing Federal financial assistance. Every application by a
State or a State agency for continuing Federal financial assistance to
which this part applies (including the types of Federal financial
assistance listed in appendix A to this part) shall as a condition to
its approval and the extension of any Federal financial assistance
pursuant to the application:
[[Page 117]]
(1) Contain or be accompanied by a statement that the program is
(or, in the case of a new program, will be) conducted in compliance with
all requirements imposed by or pursuant to this part; and
(2) Provide or be accompanied by provision for such methods of
administration for the program as are found by the Secretary to give
reasonable guarantee that the applicant and all recipients of Federal
financial assistance under such program will comply with all
requirements imposed by or pursuant to this part.
(c) Assurance from institutions. (1) In the case of any application
for Federal financial assistance to an institution of higher education
(including assistance for construction, for research, for special
training projects, for student loans or for any other purpose), the
assurance required by this section shall extend to admission practices
and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of individuals as students, patients, or clients of the
institution or to the opportunity to participate in the provision of
services or other benefits to such individuals, shall be applicable to
the entire institution.
Sec. 21.9 Compliance information.
(a) Cooperation and assistance. The Secretary shall to the fullest
extent practicable seek the cooperation of recipients in obtaining
compliance with this part and shall provide assistance and guidance to
recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the Secretary timely, complete, and accurate compliance
reports at such times, and in such form and containing such information,
as the Secretary may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
part. In the case in which a primary recipient extends Federal financial
assistance to any other recipient, such other recipient shall also
submit such compliance reports to the primary recipient as may be
necessary to enable the primary recipient to carry out its obligations
under this part. In general, recipients should have available for the
Secretary racial and ethnic data showing the extent to which members of
minority groups are beneficiaries of programs receiving Federal
financial assistance.
(c) Access to sources of information. Each recipient shall permit
access by the Secretary during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities as may be pertinent to ascertain compliance with this part.
Where any information required of a recipient is in the exclusive
possession of any other agency, institution, or person and this agency,
institution, or person fails or refuses to furnish this information, the
recipient shall so certify in its report and shall set forth what
efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program for which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the Secretary finds necessary to
apprise such persons of the protections against discrimination assured
them by the Act and this part.
Sec. 21.11 Conduct of investigations.
(a) Periodic compliance reviews. The Secretary shall from time to
time review the practices of recipients to determine whether they are
complying with this part.
(b) Complaints. Any person who believes that he or she, or any
specific class of persons, has been subjected to discrimination
prohibited by this part may by himself or herself, or by a
representative, file with the Secretary a written complaint. A complaint
must be filed not later than 180 days after the date of the alleged
discrimination,
[[Page 118]]
unless the time for filing is extended by the Secretary.
(c) Investigations. The Secretary will make a prompt investigation
whenever a compliance review, report, complaint, or any other
information indicates a possible failure to comply with this part. The
investigation will include, where appropriate, a review of the pertinent
practices and policies of the recipient, the circumstances under which
the possible noncompliance with this part occurred, and other factors
relevant to a determination as to whether the recipient has failed to
comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the Secretary will so inform the recipient and the matter will be
resolved by informal means whenever possible. If it has been determined
that the matter cannot be resolved by informal means, action will be
taken as provided for in Sec. 21.13.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the Secretary will so inform the
recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential except to the extent
necessary to carry out the purposes of this part, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder.
Sec. 21.13 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to:
(1) A referral to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce any rights of the
United States under any law of the United States (including other titles
of the Act), or any assurance or other contractual undertaking; and
(2) Any applicable proceeding under State or local law.
(b) Noncompliance with Sec. 21.7. If an applicant fails or refuses
to furnish an assurance required under Sec. 21.7 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section, Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The Department shall
not be required to provide assistance in such a case during the pendency
of the administrative proceedings under such paragraph. However, subject
to Sec. 21.21, the Department shall continue assistance during the
pendency of such proceedings where such assistance is due and payable
pursuant to an application approved prior to the effective date of this
part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. (1) No order suspending, terminating, or refusing
to grant or continue Federal financial assistance shall become effective
until:
(i) The Secretary has advised the applicant or recipient of his
failure to comply and has determined that compliance cannot be secured
by voluntary means;
(ii) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
(iii) The action has been approved by the Secretary pursuant to
Sec. 21.17(e); and
(iv) The expiration of 30 days after the Secretary has filed with
the committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action.
[[Page 119]]
(2) Any action to suspend or terminate or to refuse to grant or to
continue Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with title VI of the Act by any other means authorized by law shall be
taken by this Department until:
(1) The Secretary has determined that compliance cannot be secured
by voluntary means;
(2) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period of at least
10 days, additional efforts shall be made to persuade the recipient or
other person to comply with the regulation and to take such corrective
action as may be appropriate.
Sec. 21.15 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 21.13(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either:
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the Secretary
that the matter be scheduled for hearing; or
(2) Advise the applicant or recipient that the matter in question
has been set down for hearing at a stated place and time. The time and
place so fixed shall be reasonable and shall be subject to change for
cause. The complainant, if any, shall be advised of the time and place
of the hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph or to
appear at a hearing for which a date has been set shall be deemed to be
a waiver of the right to a hearing under section 602 of the Act and
Sec. 21.13(c) and consent to the making of a decision on the basis of
such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, DC, at a time fixed by the Secretary
unless he determines that the convenience of the applicant or recipient
or of the Department requires that another place be selected. Hearings
shall be held before the Secretary, or at his discretion, before a
hearing examiner appointed in accordance with section 3105 of title 5,
United States Code, or detailed under section 3344 of title 5, United
States Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
sections 554 through 557 of title 5, United States Code, and in
accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the applicant or recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most
[[Page 120]]
credible evidence available and to subject testimony to test by cross-
examination shall be applied where reasonably necessary by the officer
conducting the hearing. The hearing officer may exclude irrelevant,
immaterial, or unduly repetitious evidence. All documents and other
evidence offered or taken for the record shall be open to examination by
the parties and opportunity shall be given to refute facts and arguments
advanced on either side of the issues. A transcript shall be made of the
oral evidence except to the extent the substance thereof is stipulated
for the record. All decisions shall be based upon the hearing record and
written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal statutes, authorities, or other
means by which Federal financial assistance is extended and to which
this part applies, or noncompliance with this part and the regulations
of one or more other Federal departments or agencies issued under title
VI of the Act, the Secretary may, by agreement with such other
departments or agencies, where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules or procedures not inconsistent with this part. Final decisions
in such cases, insofar as this regulation is concerned, shall be made in
accordance with Sec. 21.17.
Sec. 21.17 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the
Secretary for a final decision, and a copy of such initial decision or
certification shall be mailed to the applicant or recipient. Where the
initial decision is made by the hearing examiner the applicant or
recipient may, within 30 days after the mailing of such notice of
initial decision, file with the Secretary his exceptions to the initial
decision, with his reasons therefor. In the absence of exceptions, the
Secretary may, on his own motion, within 45 days after the initial
decision, serve on the applicant or recipient a notice that he will
review the decision. Upon the filing of such exceptions or of notice of
review, the Secretary shall review the initial decision and issue his
own decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall,
subject to paragraph (e) of this section, constitute the final decision
of the Secretary.
(b) Decisions on record or review by the Secretary. Whenever a
record is certified to the Secretary for decision or he reviews the
decision of a hearing examiner pursuant to paragraph (a) of this
section, or whenever the Secretary conducts the hearing, the applicant
or recipient shall be given reasonable opportunity to file with him
briefs or other written statements of its contentions, and a written
copy of the final decision of the Secretary shall be sent to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 21.15, a decision shall be made by
the Secretary on the record and a written copy of such decision shall be
sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
Secretary shall set forth his ruling on each finding, conclusion, or
exception presented, and shall identify the requirement or requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an official of the
Department, other than the Secretary personally, which provides for the
suspension or termination of, or the refusal to grant or continue
Federal financial assistance, or the imposition of any other sanction
available under this part or the Act, shall promptly be transmitted to
the Secretary personally, who may approve such decision, may vacate it,
or remit or mitigate any sanction imposed.
[[Page 121]]
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance to which this regulation applies will thereafter be extended
to the applicant or recipient determined by such decision to be in
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the Secretary that it
will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the Secretary to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (g)(1) of this section. If the Secretary
determines that those requirements have been satisfied, he shall restore
such eligibility.
(3) If the Secretary denies any such request, the applicant or
recipient may submit a request for a hearing in writing, specifying why
it believes such official to have been in error. It shall thereupon be
given an expeditious hearing, with a decision on the record in
accordance with rules or procedures issued by the Secretary. The
applicant or recipient will be restored to such eligibility if it proves
at such a hearing that it satisfied the requirements of paragraph (g)(1)
of this section. While proceedings under this paragraph are pending, the
sanctions imposed by the order issued under paragraph (f) of this
section shall remain in effect.
Sec. 21.19 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 21.21 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department which impose requirements designed to prohibit any
discrimination against individuals on the grounds of race, color, or
national origin under any program to which this part applies, and which
authorize the suspension or termination of or refusal to grant or to
continue Federal financial assistance to any applicant for a recipient
of such assistance for failure to comply with such requirements, are
hereby superseded to the extent that such discrimination is prohibited
by this part, except that nothing in this part may be considered to
relieve any person of any obligation assumed or imposed under any such
superseded regulation, order, instruction, or like direction before the
effective date of this part. Nothing in this part, however, supersedes
any of the following (including future amendments thereof):
(1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and
regulations issued thereunder; or
(2) Any other orders, regulations, or instructions, insofar as such
orders, regulations, or instructions prohibit discrimination on the
ground of race, color, or national origin in any program or situation to
which this part is inapplicable, or prohibit discrimination on any other
ground.
(b) Forms and instructions. The Secretary shall issue and promptly
make available to all interested persons forms and detailed instructions
and procedures for effectuating this part as applied to programs to
which this part applies and for which he is responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or
[[Page 122]]
agencies of the Government with the consent of such departments or
agencies, responsibilities in connection with the effectuation of the
purposes of title VI of the Act and this part (other than responsibility
for final decision as provided in Sec. 21.17), including the
achievement of effective coordination and maximum uniformity within the
Department and within the Executive Branch of the Government in the
application of title VI and this part to similar programs and in similar
situations. Any action taken, determination made or requirement imposed
by an official of another department or agency acting pursuant to an
assignment of responsibility under this paragraph shall have the same
effect as though such action had been taken by the Secretary of this
Department.
Sec. Appendix A to Part 21--Activities to Which This Part Applies
Note: Failure to list a type of Federal assistance in appendix A
shall not mean, if title VI is otherwise applicable, that a program is
not covered.
1. Lease of real property and the grant of permits, licenses,
easements and rights-of-way covering real property under control of the
U.S. Coast Guard (14 U.S.C. 93 (n) and (o)).
2. Utilization of U.S. Coast Guard personnel and facilities by any
State, territory, possession, or political subdivision thereof (14
U.S.C. 141(a)).
3. Use of U.S. Coast Guard personnel for duty in connection with
maritime instruction and training by the States, territories, and the
Commonwealth of Puerto Rico (14 U.S.C. 148).
4. Use of obsolete and other U.S. Coast Guard material by sea scout
service of Boy Scouts of America, any incorporated unit of the U.S.
Coast Guard auxiliary, and public body or private organization not
organized for profit (14 U.S.C. 641(a)).
5. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
6. U.S. Coast Guard Boating Safety Financial Assistance program.
7. U.S. Coast Guard State Access to Oil Spill Liability Trust Fund.
8. U.S. Coast Guard Bridge Alteration.
9. Use of Customs personnel and facilities by any State, territory,
possession, or political subdivision thereof.
10. Use of Customs personnel for duty in connection with instruction
and training by the States, territories and the Commonwealth of Puerto
Rico.
11. Grants to educational institutions, associations, States, or
other entities for research, analysis, or programs or strategies
relating to trade issues.
Sec. Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance Is To Provide
Employment
Note: Failure to list a type of Federal assistance in appendix B
shall not mean, if title VI is otherwise applicable, that a program is
not covered.
[Reserved]
PART 25_REGULATIONS TO SUPPORT ANTI-TERRORISM BY FOSTERING EFFECTIVE TECHNOLOGIES--Table of Contents
Sec.
25.1 Purpose.
25.2 Definitions.
25.3 Delegation.
25.4 Designation of qualified anti-terrorism technologies.
25.5 Obligations of seller.
25.6 Procedures for designation of qualified anti-terrorism
technologies.
25.7 Litigation management.
25.8 Government contractor Defense.
25.9 Procedures for certification of approved products for Homeland
Security.
25.10 Confidentiality and protection of intellectual property.
Authority: Subtitle G, of Title VIII, Public Law 107-296, 116 Stat.
2238 (6 U.S.C. 441-444).
Source: 71 FR 33159, June 8, 2006, unless otherwise noted.
Sec. 25.1 Purpose.
This part implements the Support Anti-terrorism by Fostering
Effective Technologies Act of 2002, sections 441-444 of title 6, United
States Code (the ``SAFETY Act'' or ``the Act'').
Sec. 25.2 Definitions.
Act of Terrorism--The term ``Act of Terrorism'' means any act
determined to have met the following requirements or such other
requirements as defined and specified by the Secretary:
(1) Is unlawful;
(2) Causes harm, including financial harm, to a person, property, or
entity, in the United States, or in the case of a domestic United States
air carrier or
[[Page 123]]
a United States-flag vessel (or a vessel based principally in the United
States on which United States income tax is paid and whose insurance
coverage is subject to regulation in the United States), in or outside
the United States; and
(3) Uses or attempts to use instrumentalities, weapons or other
methods designed or intended to cause mass destruction, injury or other
loss to citizens or institutions of the United States.
Certification--The term ``Certification'' means (unless the context
requires otherwise) the certification issued pursuant to section 25.9
that a Qualified Anti-Terrorism Technology for which a Designation has
been issued will perform as intended, conforms to the Seller's
specifications, and is safe for use as intended.
Contractor--The term ``contractor'' means any person, firm, or other
entity with whom or with which a Seller has a contract or contractual
arrangement relating to the manufacture, sale, use, or operation of
anti-terrorism Technology for which a Designation is issued (regardless
of whether such contract is entered into before or after the issuance of
such Designation), including, without limitation, an independent
laboratory or other entity engaged in testing or verifying the safety,
utility, performance, or effectiveness of such Technology, or the
conformity of such Technology to the Seller's specifications.
Designation--The term ``Designation'' means the designation of a
Qualified Anti-Terrorism Technology under the SAFETY Act issued by the
Under Secretary under authority delegated to the Under Secretary by the
Secretary of Homeland Security.
Loss--The term ``loss'' means death, bodily injury, or loss of or
damage to property, including business interruption loss (which is a
component of loss of or damage to property).
Noneconomic damages--The term ``noneconomic damages'' means damages
for losses for physical and emotional pain, suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of enjoyment of
life, loss of society and companionship, loss of consortium, hedonic
damages, injury to reputation, and any other nonpecuniary losses.
Office of SAFETY Act Implementation--The term ``Office of SAFETY Act
Implementation'' or ``OSAI'' means the office within the Department of
Homeland Security's Directorate of Science and Technology that assists
with the implementation of the SAFETY Act. The responsibilities of the
Office of SAFETY Act Implementation may include, without limitation,
preparing the SAFETY Act Application Kit, receiving and facilitating the
evaluation of applications, managing the SAFETY Act Web site and
otherwise providing the public with information regarding the SAFETY Act
and the application process.
Physical harm--The term ``physical harm'' as used in the Act and
this part means any physical injury to the body, including an injury
that caused, either temporarily or permanently, partial or total
physical disability, incapacity or disfigurement. In no event shall
physical harm include mental pain, anguish, or suffering, or fear of
injury.
Qualified Anti-Terrorism Technology or QATT--The term ``'Qualified
Anti-Terrorism Technology'' or ``QATT'' means any Technology (including
information technology) designed, developed, modified, procured, or sold
for the purpose of preventing, detecting, identifying, or deterring acts
of terrorism or limiting the harm such acts might otherwise cause, for
which a Designation has been issued pursuant to this part.
SAFETY Act or Act--The term ``SAFETY Act'' or ``Act'' means the
Support Anti-terrorism by Fostering Effective Technologies Act of 2002,
sections 441-444 of title 6, United States Code.
SAFETY Act Application Kit --The term ``SAFETY Act Application Kit''
means the Application Kit containing the instructions and forms
necessary to apply for Designation or Certification. The SAFETY Act
Application Kit shall be published at http://www.safetyact.gov or made
available in hard copy upon written request to: Directorate of Science
and Technology, SAFETY Act/room 4320, Department of Homeland Security,
Washington, DC 20528.
[[Page 124]]
SAFETY Act Confidential Information--Any and all information and
data voluntarily submitted to the Department under this part (including
Applications, Pre-Applications, other forms, supporting documents and
other materials relating to any of the foregoing, and responses to
requests for additional information), including, but not limited to,
inventions, devices, Technology, know-how, designs, copyrighted
information, trade secrets, confidential business information, analyses,
test and evaluation results, manuals, videotapes, contracts, letters,
facsimile transmissions, electronic mail and other correspondence,
financial information and projections, actuarial calculations, liability
estimates, insurance quotations, and business and marketing plans.
Notwithstanding the foregoing, ``SAFETY Act Confidential Information''
shall not include any information or data that is in the public domain
or becomes part of the public domain by any means other than the
violation of this section.
Secretary--The term ``Secretary'' means the Secretary of Homeland
Security as established by section 102 of the Homeland Security Act of
2002.
Seller--The term ``Seller'' means any person, firm, or other entity
that sells or otherwise provides Qualified Anti-Terrorism Technology to
any customer(s) and to whom or to which (as appropriate) a Designation
and/or Certification has been issued under this Part (unless the context
requires otherwise).
Technology--The term ``Technology'' means any product, equipment,
service (including support services), device, or technology (including
information technology) or any combination of the foregoing. Design
services, consulting services, engineering services, software
development services, software integration services, threat assessments,
vulnerability studies, and other analyses relevant to homeland security
may be deemed a Technology under this part.
Under Secretary--The term ``Under Secretary'' means the Under
Secretary for Science and Technology of the Department of Homeland
Security.
Sec. 25.3 Delegation.
All of the Secretary's responsibilities, powers, and functions under
the SAFETY Act, except the authority to declare that an act is an Act of
Terrorism for purposes of section 865(2) of the SAFETY Act, may be
exercised by the Under Secretary for Science and Technology of the
Department of Homeland Security or the Under Secretary's designees.
Sec. 25.4 Designation of qualified anti-terrorism technologies.
(a) General. The Under Secretary may Designate as a Qualified Anti-
Terrorism Technology for purposes of the protections under the system of
litigation and risk management set forth in sections 441-444 of Title 6,
United States Code, any qualifying Technology designed, developed,
modified, provided or procured for the specific purpose of preventing,
detecting, identifying, or deterring acts of terrorism or limiting the
harm such acts might otherwise cause.
(b) Criteria to be Considered. (1) In determining whether to issue
the Designation under paragraph (a) of this section, the Under Secretary
may exercise discretion and judgment in considering the following
criteria and evaluating the Technology:
(i) Prior United States Government use or demonstrated substantial
utility and effectiveness.
(ii) Availability of the Technology for immediate deployment in
public and private settings.
(iii) Existence of extraordinarily large or extraordinarily
unquantifiable potential third party liability risk exposure to the
Seller or other provider of such anti-terrorism Technology.
(iv) Substantial likelihood that such anti-terrorism Technology will
not be deployed unless protections under the system of risk management
provided under sections 441-444 of title 6, United States Code, are
extended.
(v) Magnitude of risk exposure to the public if such anti-terrorism
Technology is not deployed.
(vi) Evaluation of all scientific studies that can be feasibly
conducted in order to assess the capability of the Technology to
substantially reduce risks of harm.
[[Page 125]]
(vii) Anti-terrorism Technology that would be effective in
facilitating the defense against acts of terrorism, including
Technologies that prevent, defeat or respond to such acts.
(viii) A determination made by Federal, State, or local officials,
that the Technology is appropriate for the purpose of preventing,
detecting, identifying or deterring acts of terrorism or limiting the
harm such acts might otherwise cause.
(ix) Any other factor that the Under Secretary may consider to be
relevant to the determination or to the homeland security of the United
States.
(2) The Under Secretary has discretion to give greater weight to
some factors over others, and the relative weighting of the various
criteria may vary depending upon the particular Technology at issue and
the threats that the Technology is designed to address. The Under
Secretary may, in his discretion, determine that failure to meet a
particular criterion justifies denial of an application under the SAFETY
Act. However, the Under Secretary is not required to reject an
application that fails to meet one or more of the criteria. The Under
Secretary may conclude, after considering all of the relevant criteria
and any other relevant factors, that a particular Technology merits
Designation as a Qualified Anti-Terrorism Technology even if one or more
particular criteria are not satisfied. The Under Secretary's
considerations will take into account evolving threats and conditions
that give rise to the need for the anti-terrorism Technologies.
(c) Use of Standards. From time to time, the Under Secretary may
develop, issue, revise, adopt, and recommend technical standards for
various categories or components of anti-terrorism Technologies
(``Adopted Standards''). In the case of Adopted Standards that are
developed by the Department or that the Department has the right or
license to reproduce, the Department will make such standards available
to the public consistent with necessary protection of sensitive homeland
security information. In the case of Adopted Standards that the
Department does not have the right or license to reproduce, the
Directorate of Science and Technology will publish a list and summaries
of such standards and may publish information regarding the sources for
obtaining copies of such standards. Compliance with any Adopted Standard
or other technical standards that are applicable to a particular anti-
terrorism Technology may be considered in determining whether a
Technology will be Designated pursuant to paragraph (a) of this section.
Depending on whether an Adopted Standard otherwise meets the criteria
set forth in section 862 of the Homeland Security Act; 6 U.S.C. 441, the
Adopted Standard itself may be deemed a Technology that may be
Designated as a Qualified Anti-Terrorism Technology.
(d) Consideration of Substantial Equivalence. In considering the
criteria in paragraph (b) of this section, or evaluating whether a
particular anti-terrorism Technology complies with any Adopted Standard
referenced in paragraph (c) of this section, the Under Secretary may
consider evidence that the Technology is substantially equivalent to
other Technologies (``Predicate Technologies'') that previously have
been Designated as Qualified Anti-Terrorism Technologies under the
SAFETY Act. A Technology may be deemed to be substantially equivalent to
a Predicate Technology if:
(1) It has the same intended use as the Predicate Technology; and
(2) It has the same or substantially similar performance or
technological characteristics as the Predicate Technology.
(e) Pre-Application Consultations. To the extent that he deems it to
be appropriate, the Under Secretary may consult with prospective and
current SAFETY Act applicants regarding their particular anti-terrorism
Technologies. Prospective applicants may request such consultations
through the Office of SAFETY Act Implementation. The confidentiality
provisions in Sec. 25.10 shall be applicable to such consultations.
(f) Developmental Testing & Evaluation (DT&E) Designations. With
respect to any Technology that is being developed, tested, evaluated,
modified or is otherwise being prepared for deployment for the purpose
of preventing, detecting, identifying, or deterring acts
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of terrorism or limiting the harm such acts might otherwise cause, the
Under Secretary may Designate such Technology as a Qualified Anti-
Terrorism Technology and make such Technology eligible for the
protections under the system of litigation and risk management set forth
in sections 441-444 of title 6, United States Code. A Designation made
pursuant to this paragraph shall be referred to as a ``DT&E
Designation,'' and shall confer all of the rights, privileges and
obligations that accompany Designations made pursuant to paragraph (a)
of this section except as modified by the terms of this paragraph or the
terms of the particular DT&E Designation. The intent of this paragraph
is to make eligible for SAFETY Act protections qualifying Technologies
that are undergoing testing and evaluation and that may need to be
deployed in the field either for developmental testing and evaluation
purposes or on an emergency basis, including during a period of
heightened risk. DT&E Designations shall describe the subject Technology
(in such detail as the Under Secretary deems to be appropriate);
identify the Seller of the subject Technology; be limited to the period
of time set forth in the applicable DT&E Designation, which in no
instance shall exceed a reasonable period for testing or evaluating the
Technology (presumptively not longer than 36 months); be terminable by
the Under Secretary at any time upon notice to the Seller; be subject to
the limitations on the use or deployment of the QATT set forth in the
DT&E Designation; and be subject to such other limitations as
established by the Under Secretary. The protections associated with a
DT&E Designation shall apply only during the period specified in the
applicable DT&E Designation. Consent of the Seller of a QATT Designated
pursuant to this paragraph will be a condition precedent to the
establishment of any deployment or use condition and any other
obligation established by the Under Secretary pursuant to this
paragraph. Those seeking a DT&E Designation for a QATT pursuant to this
paragraph (f) shall follow the procedures for DT&E Designations set
forth in the SAFETY Act Application Kit.
Sec. 25.5 Obligations of seller.
(a) Liability Insurance Required. The Seller shall obtain liability
insurance of such types and in such amounts as shall be required in the
applicable Designation, which shall be the amounts and types certified
by the Under Secretary to satisfy otherwise compensable third-party
claims arising out of, relating to, or resulting from an Act of
Terrorism when Qualified Anti-Terrorism Technologies have been deployed
in defense against, response to, or recovery from, such act. The Under
Secretary may request at any time that the Seller of a Qualified Anti-
Terrorism Technology submit any information that would:
(1) Assist in determining the amount of liability insurance
required; or
(2) Show that the Seller or any other provider of Qualified Anti-
Terrorism Technology otherwise has met all of the requirements of this
section.
(b) Amount of Liability Insurance. (1) The Under Secretary may
determine the appropriate amounts and types of liability insurance that
the Seller will be required to obtain and maintain based on criteria he
may establish to satisfy compensable third-party claims arising from,
relating to or resulting from an Act of Terrorism. In determining the
amount of liability insurance required, the Under Secretary may consider
any factor, including, but not limited to, the following:
(i) The particular Technology at issue;
(ii) The amount of liability insurance the Seller maintained prior
to application;
(iii) The amount of liability insurance maintained by the Seller for
other Technologies or for the Seller's business as a whole;
(iv) The amount of liability insurance typically maintained by
Sellers of comparable Technologies;
(v) Information regarding the amount of liability insurance offered
on the world market;
(vi) Data and history regarding mass casualty losses;
(vii) The intended use of the Technology; and
(viii) The possible effects of the cost of insurance on the price of
the product, and the possible consequences
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thereof for development, production, or deployment of the Technology.
(2) In determining the appropriate amounts and types of insurance
that a particular Seller is obligated to carry, the Under Secretary may
not require any type of insurance or any amount of insurance that is not
available on the world market, and may not require any type or amount of
insurance that would unreasonably distort the sales price of the
Seller's anti-terrorism Technology
(c) Scope of Coverage. (1) Liability insurance required to be
obtained pursuant to this section shall, in addition to the Seller,
protect the following, to the extent of their potential liability for
involvement in the manufacture, qualification, sale, use, or operation
of Qualified Anti-Terrorism Technologies deployed in defense against,
response to, or recovery from, an Act of Terrorism:
(i) Contractors, subcontractors, suppliers, vendors and customers of
the Seller.
(ii) Contractors, subcontractors, suppliers, and vendors of the
customer.
(2) Notwithstanding the foregoing, in appropriate instances the
Under Secretary will specify in a particular Designation that,
consistent with the Department's interpretation of the SAFETY Act, an
action for the recovery of damages proximately caused by a Qualified
Anti-Terrorism Technology that arises out of, relates to, or results
from an Act of Terrorism may properly be brought only against the Seller
and, accordingly, the liability insurance required to be obtained
pursuant to this section shall be required to protect only the Seller.
(d) Third Party Claims. To the extent available pursuant to the
SAFETY Act, liability insurance required to be obtained pursuant to this
section shall provide coverage against third party claims arising out
of, relating to, or resulting from an Act of Terrorism when the
applicable Qualified Anti-Terrorism Technologies have been deployed in
defense against, response to, or recovery from such act.
(e) Reciprocal Waiver of Claims. The Seller shall enter into a
reciprocal waiver of claims with its contractors, subcontractors,
suppliers, vendors, and customers, and contractors and subcontractors of
the customers, involved in the manufacture, sale, use, or operation of
Qualified Anti-Terrorism Technologies, under which each party to the
waiver agrees to be responsible for losses, including business
interruption losses, that it sustains, or for losses sustained by its
own employees resulting from an activity resulting from an Act of
Terrorism when Qualified Anti-Terrorism Technologies have been deployed
in defense against, response to, or recovery from such act.
Notwithstanding the foregoing, provided that the Seller has used
diligent efforts in good faith to obtain all required reciprocal
waivers, obtaining such waivers shall not be a condition precedent or
subsequent for, nor shall the failure to obtain one or more of such
waivers adversely affect, the issuance, validity, effectiveness,
duration, or applicability of a Designation or a Certification. Nothing
in this paragraph (e) shall be interpreted to render the failure to
obtain one or more of such waivers a condition precedent or subsequent
for the issuance, validity, effectiveness, duration, or applicability of
a Designation or a Certification.
(f) Information to be Submitted by the Seller. As part of any
application for a Designation, the Seller shall provide all information
that may be requested by the Under Secretary or his designee, regarding
a Seller's liability insurance coverage applicable to third-party claims
arising out of, relating to, or resulting from an Act of Terrorism when
the Seller's Qualified Anti-Terrorism Technology has been deployed in
defense against, response to, or recovery from such act, including:
(1) Names of insurance companies, policy numbers, and expiration
dates;
(2) A description of the types and nature of such insurance
(including the extent to which the Seller is self-insured or intends to
self-insure);
(3) Dollar limits per occurrence and annually of such insurance,
including any applicable sublimits;
(4) Deductibles or self-insured retentions, if any, that are
applicable;
(5) Any relevant exclusions from coverage under such policies or
other factors that would affect the amount of
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insurance proceeds that would be available to satisfy third party claims
arising out of, relating to, or resulting from an Act of Terrorism;
(6) The price for such insurance, if available, and the per-unit
amount or percentage of such price directly related to liability
coverage for the Seller's Qualified Anti-Terrorism Technology deployed
in defense against, or response to, or recovery from an Act of
Terrorism;
(7) Where applicable, whether the liability insurance, in addition
to the Seller, protects contractors, subcontractors, suppliers, vendors
and customers of the Seller and contractors, subcontractors, suppliers,
vendors and customers of the customer to the extent of their potential
liability for involvement in the manufacture, qualification, sale, use
or operation of Qualified Anti-terrorism Technologies deployed in
defense against, response to, or recovery from an Act of Terrorism; and
(8) Any limitations on such liability insurance.
(g) Under Secretary's Certification. For each Qualified Anti-
Terrorism Technology, the Under Secretary shall certify the amount of
liability insurance the Seller is required to carry pursuant to section
443(a) of title 6, United States Code, and paragraphs (a), (b), and (c)
of this section. The Under Secretary shall include the insurance
certification under this section as a part of the applicable
Designation. The insurance certification may specify a period of time
for which such insurance certification will apply. The Seller of a
Qualified Anti-Terrorism Technology may at any time petition the Under
Secretary for a revision of the insurance certification under this
section, and the Under Secretary may revise such insurance certification
in response to such a petition. The Under Secretary may at any time
request information from the Seller regarding the insurance carried by
the Seller or the amount of insurance available to the Seller.
(h) Seller's Continuing Obligations. Within 30 days after the Under
Secretary's insurance certification required by paragraph (g) of this
section, the Seller shall certify to the Under Secretary in writing that
the Seller has obtained the required insurance. Within 30 days of each
anniversary of the issuance of a Designation or at any other time as he
may determine, the Under Secretary may require, by written notice to the
Seller, that the Seller certify to the Under Secretary in writing that
the Seller has maintained the required insurance. The Under Secretary
may terminate a Designation if the Seller fails to provide any of the
insurance certifications required by this paragraph (h) or provides a
false certification.
Sec. 25.6 Procedures for designation of qualified anti-terrorism technologies.
(a) Application Procedure. Any person, firm or other entity seeking
a Designation shall submit an application to the Under Secretary or such
other official as may be named from time to time by the Under Secretary.
Such applications shall be submitted according to the procedures set
forth in and using the appropriate forms contained in the SAFETY Act
Application Kit prescribed by the Under Secretary, which shall be made
available at http://www.safetyact.gov and by mail upon written request
to: Directorate of Science and Technology, SAFETY Act/room 4320,
Department of Homeland Security, Washington, DC 20528. The burden is on
the applicant to make timely submission of all relevant data requested
in the SAFETY Act Application Kit to substantiate an application for
Designation. An applicant may withdraw a submitted application at any
time and for any reason by making a written request for withdrawal with
the Department. Withdrawal of a SAFETY Act application shall have no
prejudicial effect on any other application.
(b) Initial Notification. Within 30 days after receipt of an
application for a Designation, the Under Secretary his designee shall
notify the applicant in writing that:
(1) The application is complete and will be reviewed and evaluated,
or
(2) That the application is incomplete, in which case the missing or
incomplete parts will be specified.
[[Page 129]]
(c) Review Process. (1) The Under Secretary or his designee will
review each complete application and any included supporting materials.
In performing this function, the Under Secretary or his designee may but
is not required to:
(i) Request additional information from the Seller;
(ii) Meet with representatives of the Seller;
(iii) Consult with, and rely upon the expertise of, any other
Federal or non-Federal entity;
(iv) Perform studies or analyses of the subject Technology or the
insurance market for such Technology; and
(v) Seek information from insurers regarding the availability of
insurance for such Technology.
(2) For Technologies with which a Federal, State, or local
government agency already has substantial experience or data (through
the procurement process or through prior use or review), the review may
rely in part upon such prior experience and, thus, may be expedited. The
Under Secretary may consider any scientific studies, testing, field
studies, or other experience with the Technology that he deems
appropriate and that are available or can be feasibly conducted or
obtained, including test results produced by an independent laboratory
or other entity engaged to test or verify the safety, utility,
performance, in order to assess the effectiveness of the Technology or
the capability of the Technology to substantially reduce risks of harm.
Such studies may, in the Under Secretary's discretion, include, without
limitation:
(i) Public source studies;
(ii) Classified and otherwise confidential studies;
(iii) Studies, tests, or other performance records or data provided
by or available to the producer of the specific Technology; and
(iv) Proprietary studies that are available to the Under Secretary.
(3) In considering whether or the extent to which it is feasible to
defer a decision on a Designation until additional scientific studies
can be conducted on a particular Technology, the Under Secretary will
bring to bear his expertise concerning the protection of the security of
the United States and will consider the urgency of the need for the
Technology.
(d) Action by the Under Secretary. Within 90 days of notification to
the Seller that an application for a Designation is complete in
accordance with paragraph (b)(1) of this section, the Under Secretary
shall take one of the following actions:
(1) Approve the application and issue an appropriate Designation to
the applicant for the Technology, which shall include the insurance
certification required by Sec. 25.5(h) of this Part;
(2) Notify the applicant in writing that the Technology is
potentially eligible for a Designation, but that additional specified
information is needed before a decision may be reached; or
(3) Deny the application, and notify the applicant in writing of
such decision. The Under Secretary may extend the 90-day time period for
up to 45 days upon notice to the Seller. The Under Secretary is not
required to provide a reason or cause for such extension. The Under
Secretary's decision shall be final and not subject to review, except at
the discretion of the Under Secretary.
(e) Content of Designation. (1) A Designation shall:
(i) Describe the Qualified Anti-Terrorism Technology (in such detail
as the Under Secretary deems to be appropriate);
(ii) Identify the Seller(s) of the Qualified Anti-Terrorism
Technology;
(iii) Specify the earliest date of sale of the Qualified Anti-
Terrorism Technology to which the Designation shall apply (which shall
be determined by the Under Secretary in his discretion, and may be prior
to, but shall not be later than, the effective date of the Designation);
(iv) Set forth the insurance certification required by Sec.
25.5(g); and
(v) To the extent practicable, include such standards,
specifications, requirements, performance criteria, limitations, or
other information as the Department in its sole and unreviewable
discretion may deem appropriate.
(2) The Designation may, but need not, specify other entities that
are required to be covered by the liability insurance required to be
purchased by
[[Page 130]]
the Seller. The failure to specify a covered person, firm, or other
entity in a Designation will not preclude the application or
applicability of the Act's protections to that person, firm, or other
entity.
(f) Term of Designation; Renewal. A Designation shall be valid and
effective for a term of five to eight years (as determined by the Under
Secretary) commencing on the date of issuance, and the protections
conferred by the Designation shall continue in full force and effect
indefinitely to all sales of Qualified Anti-Terrorism Technologies
covered by the Designation. At any time within two years prior to the
expiration of the term of the Designation, the Seller may apply for
renewal of the Designation. The Under Secretary shall make the
application form for renewal available at http://www.safetyact.gov and
by mail upon request sent to: Directorate of Science and Technology,
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC
20528.
(g) Government Procurements--(1) Overview. The Under Secretary may
coordinate the review of a Technology for SAFETY Act purposes in
connection with a Federal, State, or local government agency procurement
of an anti-terrorism Technology in any manner he deems appropriate
consistent with the Act and other applicable law. A determination by the
Under Secretary to issue a Designation, or not to issue a Designation
for a particular Technology as a QATT is not a determination that the
Technology meets, or fails to meet, the requirements of any solicitation
issued by any Federal government customer or non-Federal government
customer. Determinations by the Under Secretary with respect to whether
to issue a Designation for Technologies submitted for his review shall
be based on the factors identified in Sec. 25.4(b).
(2) Procedure. Any Federal, State, or local government agency that
engages in or is planning to engage in the procurement of a Technology
that potentially qualifies as a Qualified Anti-terrorism Technology,
through the use of a solicitation of proposals or otherwise, may request
that the Under Secretary issue a notice stating that the Technology to
be procured either affirmatively or presumptively satisfies the
technical criteria necessary to be deemed a Qualified Anti-Terrorism
Technology (a ``Pre-Qualification Designation Notice''). The Pre-
Qualification Designation Notice will provide that the vendor(s) chosen
to provide the Technology (the ``Selected Vendor(s)''), upon submitting
an application for SAFETY Act Designation will: Receive expedited review
of their application for Designation; either affirmatively or
presumptively (as the case may be) be deemed to have satisfied the
technical criteria for SAFETY Act Designation with respect to the
Technology identified in the Pre-Qualification Designation Notice; and
be authorized to submit a streamlined application as set forth in the
Pre-Qualification Designation Notice. In instances in which the subject
procurement involves Technology with respect to which a Block
Designation or Block Certification has been issued, the Department may
determine that the vendor providing such Technology will affirmatively
receive Designation or Certification with respect to such Technology,
provided the vendor satisfy each other applicable requirement for
Designation or Certification. Government agencies seeking a Pre-
Qualification Designation Notice shall submit a written request using
the ``Procurement Pre-Qualification Request'' form prescribed by the
Under Secretary and made available at http://www.safetyact.gov and by
mail upon request sent to: Directorate of Science and Technology, SAFETY
Act/room 4320, Department of Homeland Security, Washington, DC 20528.
(3) Actions. Within 60 days after the receipt of a complete
Procurement Pre-Qualification Request, the Under Secretary shall take
one of the following actions:
(i) Approve the Procurement Pre-Qualification Request and issue an
appropriate Pre-Qualification Designation Notice to the requesting
agency that it may include in the government contract or in the
solicitation materials, as appropriate; or
(ii) Notify the requesting agency in writing that the relevant
procurement
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is potentially eligible for a Pre-Qualification Designation Notice, but
that additional information is needed before a decision may be reached;
or
(iii) Deny the Procurement Pre-Qualification Request and notify the
requesting agency in writing of such decision, including the reasons for
such denial.
(4) Contents of Notice. A Pre-Qualification Designation Notice shall
contain, at a minimum, the following:
(i) A detailed description of and detailed specifications for the
Technology to which the Pre-Qualification Designation Notice applies,
which may incorporate by reference all or part of the procurement
solicitation documents issued or to be issued by the requesting agency;
(ii) A statement that the Technology to which the Pre-Qualification
Designation Notice applies satisfies the technical criteria to be deemed
a Qualified Anti-Terrorism Technology and that the Selected Vendor(s)
may presumptively or will qualify for the issuance of a Designation for
such Technology upon compliance with the terms and conditions set forth
in such Pre-Qualification Designation Notice and the approval of the
streamlined application;
(iii) A list of the portions of the application referenced in Sec.
25.6(a) that the Selected Vendor(s) must complete and submit to the
Department in order to obtain Designation and the appropriate period of
time for such submission;
(iv) The period of time within which the Under Secretary will take
action upon such submission;
(v) The date of expiration of such Pre-Qualification Designation
Notice; and
(vi) Any other terms or conditions that the Under Secretary deems to
be appropriate in his discretion.
(5) Review of Completed Applications. The application for
Designation from the Selected Vendor(s) shall be considered, processed,
and acted upon in accordance with the procedures set forth in Sec. 25.6
(which shall be deemed to be modified by the terms and conditions set
forth in the applicable Pre-Qualification Designation Notice). However,
the review and evaluation of the Technology to be procured from the
Selected Vendor(s), in relation to the criteria set forth in Sec.
25.4(b), shall ordinarily consist of a validation that that the
Technology complies with the detailed description of and detailed
specifications for the Technology set forth in the applicable Pre-
Qualification Designation Notice.
(h) Block Designations. (1) From time to time, the Under Secretary,
in response to an application submitted pursuant to Sec. 25.6(a) or
upon his own initiative, may issue a Designation that is applicable to
any person, firm, or other entity that is a qualified Seller of the QATT
described in such Designation (a ``Block Designation''). A Block
Designation will be issued only for Technology that relies on
established performance standards or defined technical characteristics.
All Block Designations shall be published by the Department within ten
days after the issuance thereof at http://www.safetyact.gov, and copies
may also be obtained by mail by sending a request to: Directorate of
Science and Technology, SAFETY Act/room 4320, Department of Homeland
Security, Washington, DC 20528. Any person, firm, or other entity that
desires to qualify as a Seller of a QATT that has received a Block
Designation shall complete only such portions of the application
referenced in Sec. 25.6(a) as are specified in such Block Designation
and shall submit an application to the Department in accordance with
Sec. 25.6(a) and the terms of the Block Designation. Applicants seeking
to be qualified Sellers of a QATT pursuant to a Block Designation will
receive expedited review of their applications and shall not be required
to provide information with respect to the technical merits of the QATT
that has received Block Designation. Within 60 days (or such other
period of time as may be specified in the applicable Block Designation)
after the receipt by the Department of a complete application, the Under
Secretary shall take one of the following actions:
(i) Approve the application and notify the applicant in writing of
such approval, which notification shall include the certification
required by Sec. 25.5(g); or
[[Page 132]]
(ii) Deny the application, and notify the applicant in writing of
such decision, including the reasons for such denial.
(2) If the application is approved, commencing on the date of such
approval the applicant shall be deemed to be a Seller under the
applicable Block Designation for all purposes under the SAFETY Act, this
part, and such Block Designation. A Block Designation shall be valid and
effective for a term of five to eight years (as determined by the Under
Secretary in his discretion) commencing on the date of issuance, and may
be renewed or extended by the Under Secretary at his own initiative or
in response to an application for renewal submitted by a qualified
Seller under such Block Designation in accordance with Sec. 25.6(h).
Except as otherwise specifically provided in this paragraph, a Block
Designation shall be deemed to be a Designation for all purposes under
the SAFETY Act and this part.
(i) Other Bases for Expedited Review of Applications. The Under
Secretary may identify other categories or types of Technologies for
which expedited processing may be granted. For example, the Under
Secretary may conduct expedited processing for applications addressing a
particular threat or for particular types of anti-terrorism
Technologies. The Under Secretary shall notify the public of any such
opportunities for expedited processing by publishing such notice in the
Federal Register.
(j) Transfer of Designation. Except as may be restricted by the
terms and conditions of a Designation, any Designation may be
transferred and assigned to any other person, firm, or other entity to
which the Seller transfers and assigns all right, title, and interest in
and to the Technology covered by the Designation, including the
intellectual property rights therein (or, if the Seller is a licensee of
the Technology, to any person, firm, or other entity to which such
Seller transfers all of its right, title, and interest in and to the
applicable license agreement). Such transfer and assignment of a
Designation will not be effective unless and until the Under Secretary
is notified in writing of the transfer using the ``Application for
Transfer of Designation'' form issued by the Under Secretary (the Under
Secretary shall make this application form available at http://
www.safetyact.gov and by mail by written request sent to: Directorate of
Science and Technology, SAFETY Act/room 4320, Department of Homeland
Security, Washington, DC 20528). Upon the effectiveness of such transfer
and assignment, the transferee will be deemed to be a Seller in the
place and stead of the transferor with respect to the applicable
Technology for all purposes under the SAFETY Act, this part, and the
transferred Designation. The transferred Designation will continue to
apply to the transferor with respect to all transactions and occurrences
that occurred through the time at which the transfer and assignment of
the Designation became effective, as specified in the applicable
Application for Transfer of Designation.
(k) Application of Designation to Licensees. Except as may be
restricted by the terms and conditions of a Designation, any Designation
shall apply to any other person, firm, or other entity to which the
Seller licenses (exclusively or nonexclusively) the right to
manufacture, use, or sell the Technology, in the same manner and to the
same extent that such Designation applies to the Seller, effective as of
the date of commencement of the license, provided that the Seller
notifies the Under Secretary of such license by submitting, within 30
days after such date of commencement, a ``Notice of License of Qualified
Anti-terrorism Technology'' form issued by the Under Secretary. The
Under Secretary shall make this form available at http://
www.safetyact.gov and by mail upon request sent to: Directorate of
Science and Technology, SAFETY Act/room 4320, Department of Homeland
Security, Washington, DC 20528. Such notification shall not be required
for any licensee listed as a Seller on the applicable Designation.
(l) Significant Modification of Qualified Anti-terrorism
Technologies. (1) The Department recognizes that Qualified
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Anti-Terrorism Technologies may routinely undergo changes or
modifications in their manufacturing, materials, installation,
implementation, operating processes, component assembly, or in other
respects from time to time. When a Seller makes routine changes or
modifications to a Qualified Anti-Terrorism Technology, such that the
QATT remains within the scope of the description set forth in the
applicable Designation or Certification, the Seller shall not be
required to provide notice under this subsection, and the changes or
modifications shall not adversely affect the force or effect of the
Seller's QATT Designation or Certification.
(2) A Seller shall promptly notify the Department and provide
details of any change or modification to a QATT that causes the QATT no
longer to be within the scope of the Designation or Certification by
submitting to the Department a completed ``Notice of Modification to
Qualified Anti-Terrorism Technology'' form issued by the Under Secretary
(a ``Modification Notice''). A Seller is not required to notify the
Department of any change or modification of a particular Qualified Anti-
Terrorism Technology that is made post-sale by a purchaser unless the
Seller has consented expressly to the modification. The Under Secretary
shall make an appropriate form available at http://www.safetyact.gov and
by mail upon request sent to: Directorate of Science and Technology,
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC
20528. The Department will promptly acknowledge receipt of a
Modification Notice by providing the relevant Seller with written notice
to that effect. Within 60 days of the receipt of a Modification Notice,
the Under Secretary may, in his sole and unreviewable discretion:
(i) Inform the submitting Seller that the QATT as changed or
modified is consistent with, and is not outside the scope of, the
Seller's Designation or Certification;
(ii) Issue to the Seller a modified Designation or Certification
incorporating some or all of the notified changes or modifications;
(iii) Seek further information regarding the changes or
modifications and temporarily suspend the 60-day period of review;
(iv) Inform the submitting Seller that the changes or modifications
might cause the QATT as changed or modified to be outside the scope of
the Seller's Designation or Certification, and require further review
and consideration by the Department;
(v) Inform the submitting Seller that the QATT as changed or
modified is outside the scope of the subject Seller's Designation or
Certification, and require that the QATT be brought back into
conformance with the Seller's Designation or Certification; or
(vi) If the Seller fails to bring the subject QATT into conformance
in accordance with the Under Secretary's direction pursuant to paragraph
(l)(2)(v) of this section, issue a public notice stating that the QATT
as changed or modified is outside the scope of the submitting Seller's
Designation or Certification and, consequentially, that such Designation
or Certification is not applicable to the QATT as changed or modified.
If the Under Secretary does not take one or more of such actions within
the 60-day period following the Department's receipt of a Seller's
Modification Notice, the changes or modifications identified in the
Modification Notice will be deemed to be approved by the Under Secretary
and the QATT, as changed or modified, will be conclusively established
to be within the scope of the description of the QATT in the Seller's
Designation or Certification.
(3) Notwithstanding anything to the contrary herein, a Seller's
original QATT Designation or Certification will continue in full force
and effect in accordance with its terms unless modified, suspended, or
terminated by the Under Secretary in his discretion, including during
the pendency of the review of the Seller's Modification Notice. In no
event will any SAFETY Act Designation or Certification terminate
automatically or retroactively under this section. A Seller is not
required to notify the Under Secretary of any change or modification
that is made post-sale by a purchaser or end-user of the QATT without
the Seller's consent, but the Under Secretary may, in appropriate
circumstances, require an end-
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user to provide periodic reports on modifications or permit inspections
or audits.
Sec. 25.7 Litigation management.
(a) Liability for all claims against a Seller arising out of,
relating to, or resulting from an Act of Terrorism when such Seller's
Qualified Anti-Terrorism Technology has been deployed in defense
against, response to, or recovery from such act and such claims result
or may result in loss to the Seller shall not be in an amount greater
than the limits of liability insurance coverage required to be
maintained by the Seller under this section or as specified in the
applicable Designation.
(b) In addition, in any action for damages brought under section 442
of Title 6, United States Code:
(1) No punitive damages intended to punish or deter, exemplary
damages, or other damages not intended to compensate a plaintiff for
actual losses may be awarded, nor shall any party be liable for interest
prior to the judgment;
(2) Noneconomic damages may be awarded against a defendant only in
an amount directly proportional to the percentage of responsibility of
such defendant for the harm to the plaintiff, and no plaintiff may
recover noneconomic damages unless the plaintiff suffered physical harm;
and
(3) Any recovery by a plaintiff shall be reduced by the amount of
collateral source compensation, if any, that the plaintiff has received
or is entitled to receive as a result of such Acts of Terrorism that
result or may result in loss to the Seller.
(c) Without prejudice to the authority of the Under Secretary to
terminate a Designation pursuant to paragraph (h) of Sec. 25.6, the
liability limitations and reductions set forth in this section shall
apply in perpetuity to all sales or deployments of a Qualified Anti-
Terrorism Technology in defense against, response to, or recovery from
any Act of Terrorism that occurs on or after the effective date of the
Designation applicable to such Qualified Anti-Terrorism Technology,
regardless of whether any liability insurance coverage required to be
obtained by the Seller is actually obtained or maintained or not,
provided that the sale of such Qualified Anti-Terrorism Technology was
consummated by the Seller on or after the earliest date of sale of such
Qualified Anti-Terrorism Technology specified in such Designation and
prior to the earlier of the expiration or termination of such
Designation.
(d) There shall exist only one cause of action for loss of property,
personal injury, or death for performance or non-performance of the
Seller's Qualified Anti-Terrorism Technology in relation to an Act of
Terrorism. Such cause of action may be brought only against the Seller
of the Qualified Anti-Terrorism Technology and may not be brought
against the buyers, the buyers' contractors, or downstream users of the
Technology, the Seller's suppliers or contractors, or any other person
or entity. In addition, such cause of action must be brought in the
appropriate district court of the United States.
Sec. 25.8 Government contractor Defense.
(a) Criteria for Certification. The Under Secretary may issue a
Certification for a Qualified Anti-Terrorism Technology as an Approved
Product for Homeland Security for purposes of establishing a rebuttable
presumption of the applicability of the government contractor defense.
In determining whether to issue such Certification, the Under Secretary
or his designee shall conduct a comprehensive review of the design of
such Technology and determine whether it will perform as intended,
conforms to the Seller's specifications, and is safe for use as
intended. The Seller shall provide safety and hazard analyses and other
relevant data and information regarding such Qualified Anti-Terrorism
Technology to the Department in connection with an application. The
Under Secretary or his designee may require that the Seller submit any
information that the Under Secretary or his designee considers relevant
to the application for approval. The Under Secretary or his designee may
consult with, and rely upon the expertise of, any other governmental or
non-governmental person, firm, or entity, and may consider test results
produced by an independent laboratory or other person,
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firm, or other entity engaged by the Seller.
(b) Extent of Liability. Should a product liability or other lawsuit
be filed for claims arising out of, relating to, or resulting from an
Act of Terrorism when Qualified Anti-Terrorism Technologies Certified by
the Under Secretary as provided in Sec. Sec. 25.8 and 25.9 of this part
have been deployed in defense against or response or recovery from such
act and such claims result or may result in loss to the Seller, there
shall be a rebuttable presumption that the government contractor defense
applies in such lawsuit. This presumption shall only be overcome by
clear and convincing evidence showing that the Seller acted fraudulently
or with willful misconduct in submitting information to the Department
during the course of the consideration of such Technology under this
section and Sec. 25.9 of this part. A claimant's burden to show fraud
or willful misconduct in connection with a Seller's SAFETY Act
application cannot be satisfied unless the claimant establishes there
was a knowing and deliberate intent to deceive the Department. This
presumption of the government contractor defense shall apply regardless
of whether the claim against the Seller arises from a sale of the
product to Federal Government or non-Federal Government customers. Such
presumption shall apply in perpetuity to all deployments of a Qualified
Anti-Terrorism Technology (for which a Certification has been issued by
the Under Secretary as provided in this section and Sec. 25.9 of this
part) in defense against, response to, or recovery from any Act of
Terrorism that occurs on or after the effective date of the
Certification applicable to such Technology, provided that the sale of
such Technology was consummated by the Seller on or after the earliest
date of sale of such Technology specified in such Certification (which
shall be determined by the Under Secretary in his discretion, and may be
prior to, but shall not be later than, such effective date) and prior to
the expiration or termination of such Certification.
(c) Establishing Applicability of the Government Contractor Defense.
The Under Secretary will be exclusively responsible for the review and
approval of anti-terrorism Technology for purposes of establishing the
government contractor defense in any product liability lawsuit for
claims arising out of, relating to, or resulting from an Act of
Terrorism when Qualified Anti-Terrorism Technologies approved by the
Under Secretary, as provided in this final rule, have been deployed in
defense against or response or recovery from such act and such claims
result or may result in loss to the Seller. The Certification of a
Technology as an Approved Product for Homeland Security shall be the
only evidence necessary to establish that the Seller of the Qualified
Anti-Terrorism Technology that has been issue a Certification is
entitled to a presumption of dismissal from a cause of action brought
against a Seller arising out of, relating to, or resulting from an Act
of Terrorism when the Qualified Anti-Terrorism Technology was deployed
in defense against or response to or recovery from such Act of
Terrorism. This presumption of dismissal is based upon the statutory
government contractor defense conferred by the SAFETY Act.