[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2014 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 15
Commerce and Foreign Trade
________________________
Parts 0 to 299
Revised as of January 1, 2014
Containing a codification of documents of general
applicability and future effect
As of January 1, 2014
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 15:
SUBTITLE A--Office of the Secretary of Commerce 3
SUBTITLE B--Regulations Relating to Commerce and Foreign
Trade
Chapter I--Bureau of the Census, Department of
Commerce 279
Chapter II--National Institute of Standards and
Technology, Department of Commerce 377
Finding Aids:
Table of CFR Titles and Chapters........................ 489
Alphabetical List of Agencies Appearing in the CFR...... 509
List of CFR Sections Affected........................... 519
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 15 CFR 0.735-1
refers to title 15, part
0, section 735-1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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
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To determine whether a Code volume has been amended since its
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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
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
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requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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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
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
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INQUIRIES
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available at www.ecfr.gov.
Charles A. Barth,
Director,
Office of the Federal Register.
January 1, 2014.
[[Page ix]]
THIS TITLE
Title 15--Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: Parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299
is comprised of Subtitle A--Office of the Secretary of Commerce,
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and
chapter II--National Institute of Standards and Technology, Department
of Commerce. The second volume containing parts 300-799 is comprised of
chapter III--International Trade Administration, Department of Commerce,
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of
Industry and Security, Department of Commerce. The third volume
containing part 800-End is comprised of chapter VIII--Bureau of Economic
Analysis, Department of Commerce, chapter IX--National Oceanic and
Atmospheric Administration, Department of Commerce, chapter XI--
Technology Administration, Department of Commerce, chapter XIII--East-
West Foreign Trade Board, chapter XIV--Minority Business Development
Agency, chapter XX--Office of the United States Trade Representative,
and chapter XXIII--National Telecommunications and Information
Administration, Department of Commerce. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of January 1, 2014.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of the
Managing Editor, assisted by Ann Worley.
[[Page 1]]
TITLE 15--COMMERCE AND FOREIGN TRADE
(This book contains parts 0 to 299)
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Part
SUBTITLE A--Office of the Secretary of Commerce............. 0
SUBTITLE B--Regulations Relating to Commerce and Foreign Trade
chapter i--Bureau of the Census, Department of Commerce..... 30
chapter ii--National Institute of Standards and Technology,
Department of Commerce.................................... 200
[[Page 3]]
Subtitle A--Office of the Secretary of Commerce
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Part Page
0 Employee responsibilities and conduct....... 5
1 The Seal of the Department of Commerce...... 17
2 Procedures for handling and settlement of
claims under the Federal Tort Claims Act 18
3
[Reserved]
4 Disclosure of government information........ 20
4a Classification, declassification, and public
availability of national security
information............................. 50
5 Operation of vending stands................. 53
6 Civil monetary penalty inflation adjustments 55
7
[Reserved]
8 Nondiscrimination in federally assisted
programs of the Department of Commerce--
effectuation of Title VI of the Civil
Rights Act of 1964...................... 58
8a Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 72
8b Prohibition of discrimination against the
handicapped in federally assisted
programs operated by the Department of
Commerce................................ 89
8c Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Commerce............................. 102
9 Procedures for a voluntary labeling program
for household appliances and equipment
to effect energy conservation........... 107
10 Procedures for the development of voluntary
product standards....................... 111
11 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 121
12 Fair packaging and labeling................. 121
[[Page 4]]
13 Intergovernmental review of Department of
Commerce programs and activities........ 124
14 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, other
non-profit, and commercial organizations 127
15 Legal proceedings........................... 154
16 Procedures for a voluntary consumer product
information labeling program............ 165
17 Licensing of Government-owned inventions in
the custody of the Department of
Commerce................................ 171
18 Attorney's fees and other expenses.......... 173
19 Commerce debt collection.................... 180
20 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 196
21-22
[Reserved]
23 Use of penalty mail in the location and
recovery of missing children............ 203
24 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 205
25 Program..................................... 232
26
[Reserved]
27 Protection of human subjects................ 248
28 New restrictions on lobbying................ 259
29 Governmentwide requirements for drug-free
workplace (financial assistance)........ 270
[[Page 5]]
PART 0_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Subpart A_General Provisions
Sec.
0.735-1 Purpose.
0.735-2 Cross-references to ethical conduct, financial disclosure, and
other applicable regulations.
0.735-3 Applicability.
0.735-4 Definitions.
Subparts B-C [Reserved]
Subpart D_Regulatory Limitations Upon Employee Conduct
0.735-10 Administrative extension of statutory limitations.
0.735-10a--0.735-15 [Reserved]
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.
Subpart E [Reserved]
Subpart F_Supplementary Regulations
0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.
Subpart G_Administration
0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.
Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.
Appendix A to Part 0--Statutes Governing Conduct of Federal Employees
Authority: 5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in
Government Act of 1978); 26 U.S.C. 7214(b); E.O. 12674, 54 FR 15159, 3
CFR 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR
1990 Comp., p. 306; 5 CFR part 2635.
Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.
Subpart A_General Provisions
Sec. 0.735-1 Purpose.
The purpose of this part is to set forth Department of Commerce
policy and procedure relating to employee responsibilities and conduct.
Sec. 0.735-2 Cross-references to ethical conduct, financial disclosure,
and other applicable regulations.
Employees of the Department of Commerce should refer to the
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635
and the executive branch-wide financial disclosure regulations at 5 CFR
part 2634.
[68 FR 24879, May 9, 2003]
Sec. 0.735-3 Applicability.
This part applies to all persons included within the term
``employee'' as defined in Sec. 0.735-4, except as otherwise provided
in this part.
Sec. 0.735-4 Definitions.
For purposes of this part, except as otherwise indicated in this
part:
(a) Employee. (1) Shall include: (i) Every officer and employee of
the Department of Commerce (regardless of location), including
commissioned officers of the Environmental Science Services
Administration; and
(ii) Every other person who is retained, designated, appointed, or
employed by a Federal officer or employee, who is engaged in the
performance of a function of the Department under authority of law or an
Executive act, and who is subject to the supervision of a Federal
officer or employee while engaged in the performance of the duties of
his position not only as to what he does but also as to how he performs
his duties, regardless of whether the relationship to the Department is
created by assignment, detail, contract, agreement or otherwise.
(2) Shall not include: (i) Members of the Executive Reserve except
when they are serving as employees of the
[[Page 6]]
Department under the circumstances described in paragraph (a)(1) of this
section;
(ii) Members of crews of vessels owned or chartered to the
Government and operated by or for the Maritime Administration under a
General Agency Agreement; or
(iii) Any other person who is determined legally not to be an
officer or employee of the United States.
(b) Special Government employee shall mean an employee as defined in
paragraph (a) of this section who is retained, designated, appointed, or
employed to perform with or without compensation, for not to exceed 130
days during any period of 365 consecutive days, temporary duties on
either a full-time or intermittent basis.
(c) Personnel officer means a personnel official to whom the power
of appointment is redelegated under Administrative Order 202-250.
(d) Operating unit means, for purposes of this part, primary and
constituent operating units designated as such in the Department Order
Series of the Department of Commerce and, in addition, the Office of the
Secretary.
(e) Head of an operating unit, for the purposes of this part,
includes the Assistant Secretary for Administration with respect to the
performance of functions under this part for the Office of the
Secretary.
Subparts B-C [Reserved]
Subpart D_Regulatory Limitations Upon Employee Conduct
Sec. 0.735-10 Administrative extension of statutory limitations.
The provisions of the statutes identified in this part which relate
to the ethical and other conduct of Federal employees are adopted and
will be enforced as administrative regulations, violations of which may
in appropriate cases be the basis for disciplinary action, including
removal. The fact that a statute which may relate to employee conduct is
not identified in this part does not mean that it may not be the basis
for disciplinary action against an employee.
Sec. Sec. 0.735-10a--0.735-15 [Reserved]
Sec. 0.735-16 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law such as Federal, State,
or local taxes. For purposes of this section, ``a just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court, and ``in a proper and timely manner'' means in a
manner which, in the view of the Department, does not, under the
circumstances, reflect adversely on the Government as his employer.
(b) In the event of dispute between an employee and an alleged
creditor, this section does not require the Department to determine the
validity or amount of the disputed debt.
Sec. 0.735-17 Gambling, betting, and lotteries.
An employee shall not participate while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities
(a) Necessitated by an employee's law enforcement duties, or
(b) Under section 3 of Executive Order 10927 (relating to
solicitations conducted by organizations composed of civilian employees
or members of the armed forces among their own members for
organizational support or for benefit or welfare funds for their own
members) and similar agency-approved activities.
Sec. 0.735-18 General conduct prejudicial to the Government.
(a) General policy. Officers and employees of the Federal Government
are servants of the people. Because of this, their conduct must, in many
instances, be subject to more restrictions and to higher standards than
may be the case in certain private employments. They are expected to
conduct themselves in a manner which will reflect favorably upon their
employer. Although the
[[Page 7]]
Government is not particularly interested in the private lives of its
employees, it does expect them to be honest, reliable, trustworthy, and
of good character and reputation. They are expected to be loyal to the
Government, and to the department or agency in which they are employed.
(b) Specific policy. An employee shall not engage in criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct, or
other conduct prejudicial to the Government.
(c) Regulations applicable to public buildings and grounds. Each
employee is responsible for knowing and complying with regulations of
the General Services Administration and of the Department of Commerce
applicable to public buildings and grounds.
Sec. 0.735-19 Reporting undue influence to superiors.
Each employee shall report to his superior any instance in which
another person inside or outside the Federal Government uses or attempts
to use undue influence to induce, by reason of his official Government
position, former Government employment, family relationship, political
position, or otherwise, the employee to do or omit to do any official
act in derogation of his official duty.
Subpart E [Reserved]
Subpart F_Supplementary Regulations
Sec. 0.735-32 Departmental.
The Assistant Secretary for Administration may prescribe
supplementary instructions consistent with this part.
Sec. 0.735-33 Operating units.
Each operating unit is hereby authorized and directed to prescribe,
after approval by the Assistant Secretary for Administration, such
additional regulations not inconsistent with this part as may be
necessary to effectuate the general purpose of this part in the light of
its individual operating requirements, including but not limited to
pertinent statutory provisions, such as:
(a) 35 U.S.C. 4, 122 (Patent Office);
(b) 46 U.S.C. 1111(b) (Maritime Administration);
(c) Certain provisions of the Defense Production Act of 1950, e.g.,
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App.
2160(f) (prohibition of use of confidential information for purposes of
speculation) (Business and Defense Services Administration and any other
primary operating unit affected); and
(d) Certain provisions of Pub. L. 89-136, the Public Works and
Economic Development Act of 1965, e.g., section 711 (restriction on
employing certain EDA employees by applicants for financial assistance),
and section 710(b) (embezzlement), false book entries, sharing in loans,
etc., and giving out unauthorized information for speculation).
Sec. 0.735-34 Effective date of supplementary regulations.
Supplementary regulations prescribed pursuant to Sec. 0.735-33,
shall become effective upon approval by the issuing officer unless a
different date is required by law or a later date is specified therein.
Subpart G_Administration
Sec. 0.735-35 Responsibilities of employees.
It is the responsibility of each employee:
(a) To assure, at the outset of his employment, that each of his
interests and activities is consistent with the requirements established
by or pursuant to this part;
(b) To submit a statement of employment and financial interests at
such times and in such form as may be specified in or pursuant to this
part;
(c) To certify, upon entering on duty in the Department, that he has
read this part and applicable regulations supplementary thereto;
(d) To obtain prior written authorization of any interest or
activity about the propriety of which any doubt exists in the employee's
mind, as provided in Sec. 0.735-39;
(e) To confine each of his interests and activities at all times
within the
[[Page 8]]
requirements established by or pursuant to this part, including any
authorizations granted pursuant to this part; and
(f) To obtain a further written authorization whenever circumstances
change, or the nature or extent of the interest or activity changes, in
such a manner as to involve the possibility of a violation or appearance
of a violation of a limitation or requirement prescribed in or pursuant
to this part.
Sec. 0.735-36 Responsibilities of operating units.
The head of each operating unit, or his designee, shall:
(a) Furnish or make available to each employee a copy of this part
(or a comprehensive summary thereof) within 90 days after approval of
this part by the Office of Personnel Management, and, upon their
issuance, a copy of any regulations supplementary thereto (or a
comprehensive summary thereof);
(b) Furnish or make available to each new employee at the time of
his entrance on duty a copy of this part as it may be amended and any
supplementary regulations (or a comprehensive summary thereof);
(c) Bring this part (or as it may be amended and any supplementary
regulations thereto) to the attention of each employee annually, and at
such other times as circumstances may warrant as may be determined by
the Assistant Secretary for Administration;
(d) Have available for review by employees, as appropriate, copies
of laws, Executive orders, this part, supplementary regulations, and
pertinent Office of Personnel Management regulations and instructions
relating to ethical and other conduct of Government employees;
(e) Advise each employee who is a special Government employee of his
status for purposes of 18 U.S.C. 203 and 205;
(f) Require each employee specified in Sec. 0.735-22 to submit a
statement of employment and financial interests, as provided by or
pursuant to this part;
(g) Develop an appropriate form, with the approval of the counselor
of the Department, on which the employee may certify that he has read
this part and applicable regulations supplementary thereto, in
accordance with Sec. 0.735-35(c), and on which he may, if he so
desires, indicate that he has a private activity or interest about which
he requests advice and guidance as provided by Sec. 0.735-38.
(h) Require each employee upon entering on duty and at such other
times as may be specified, to execute the certification required by
Sec. 0.735-35(c);
(i) Report to the program Secretarial Officer concerned and to the
Assistant Secretary for Administration promptly any instance in which an
employee, after notice, fails to submit the certification required under
Sec. 0.735-35(c) or a statement of employment or financial interests
required under this part within 14 calendar days following the
prescribed time limit for doing so; and
(j) Take action to impress upon each employee required to submit a
statement of employment and financial interests, upon his supervisor,
and upon employees with whom the employee works, their responsibility as
follows:
(1) The employee's supervisor is responsible (i) for excluding from
the range of duties of the employee any contracts or other transactions
between the Government and his outside employer, clients, or entities in
which he has an interest within the purview of this part, and (ii) for
overseeing the employee's activities in order to insure that the public
interest is protected from improper conduct on his part and that he will
not, through ignorance or inadvertence, embarrass the Government or
himself.
(2) The employee's supervisor and employees with whom he works are
responsible for avoiding the use of the employee's services in any
situation in which a violation of law, regulation, or ethical standards
is likely to occur or to appear to occur.
(3) The supervisor of an employee is responsible for initiating
prompt and proper disciplinary or remedial action when a violation,
intentional or innocent, is detected.
(4) Employees shall avoid divulging to a special Government employee
privileged Government information which is not necessary to the
performance of his governmental responsibility or information which
directly involves
[[Page 9]]
the financial interests of his non-Government employer.
(5) An employee shall make every effort in his private work to avoid
any personal contact with respect to negotiations with the Department
for contracts, grants, or loans, if the subject matter is related to the
subject matter of his Government employment. When this is not possible,
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C.
203 and 205) in the negotiations for his private employer only with the
prior approval of the head of the operating unit concerned.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-37 Procedure.
The review of statements of employment and financial interests shall
include the following basic measures, among others:
(a) Statements shall be submitted to the designated officer, who
will review each employee's statement of employment and financial
interests to ascertain whether they are consistent with the requirements
established by or pursuant to this part. (See Sec. 0.735-24(b).)
(b) Where the statement raises any question of compliance with the
requirements of this part, it shall be submitted to a deputy counselor
for the organization unit concerned. The deputy counselor may, in his
discretion, utilize the advice and services of others (including
departmental facilities) to obtain further information needed to resolve
the questions.
(c) The designated officer shall maintain the statements of
employment and financial interests in a file apart from the official
personnel files and shall take every measure practicable to insure their
confidentiality. Statements of employment and financial interests shall
be preserved for 5 years following the separation of an employee from
the Department or following termination of any other relationship under
which the individual rendered service to the Department, except as may
be otherwise authorized by the Assistant Secretary for Administration or
as required by law.
Sec. 0.735-38 Availability for counseling.
(a) The General Counsel of the Department shall:
(1) Serve as the counselor for the Department of Commerce with
respect to matters covered by the basic provisions cited in Sec. 0.735-
2(a) and otherwise by or pursuant to this part;
(2) Serve as the Department of Commerce designee to the Office of
Personnel Management on matters covered by this part; and
(3) Coordinate the counseling services provided under this part and
assure that counseling and interpretations on questions of conflicts of
interest and other matters covered by this part are available to deputy
counselors designated under paragraph (b) of this section.
(b) The counselor shall designate employees who shall serve as
deputy counselors for employees of the Department of Commerce with
respect to matters covered by or pursuant to this part and shall give
authoritative advice and guidance to each employee who seeks advice and
guidance on questions of conflict of interests and other matters covered
by or pursuant to this part.
(c) Each operating unit shall notify its employees of the
availability of counseling services and of how and where these services
are available. This notification shall be given within 90 days after
approval of this part by the Office of Personnel Management and
periodically thereafter. In the case of a new employee appointed after
the foregoing notification, notification shall be made at the time of
his entrance on duty.
(d) In each operating unit a deputy counselor shall advise and
counsel each employee concerning any adjustments necessary in his
financial interests or activities, or in any contemplated interests or
activities, in order to meet the requirements established by or pursuant
to this part.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-39 Authorizations.
All requests for authorizations required under this part shall be
addressed to the head of the operating unit concerned. In the Office of
the
[[Page 10]]
Secretary such requests shall be addressed to the Secretary or such
person as he may designate. When granted, authorizations will be in
writing, and a copy of each authorization will be filed in the
employees' official personnel file.
(a) In case of doubt, or upon the request of the employee concerned,
cases or questions will be forwarded to the counselor or a deputy
counselor. (See Sec. 0.735-38.)
(b) Where an activity requested to be authorized can be conducted as
official business, it shall not be authorized as a private activity, but
shall be conducted as official business.
(c) Where authorizations involve speaking, writing, or teaching, use
of the official title of the employee for identification purposes may be
authorized, provided the employee makes it clear that his statements and
actions are not of an official nature.
(d) If an authorization has been granted for a specific activity or
interest, and the activity or interest is subsequently deemed to
constitute a violation of the limitations or requirements prescribed in
or pursuant to this part, the employee concerned shall be notified in
writing of the cancellation of the authorization and shall modify or
stop the activity or interest involved, as requested.
Sec. 0.735-40 Disciplinary and other remedial action.
(a) Violation of a requirement established in or pursuant to this
part shall be cause for appropriate disciplinary action, which may be in
addition to any penalty prescribed by law.
(b) When, after consideration of the explanation of the employee
provided by Sec. 0.735-20(c), the reviewing officer, in cooperation
with the responsible supervisory official, decides that remedial action
is required, he will take or cause to be taken immediate action to end
the conflict or appearance of conflict of interest. Remedial action may
include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee of his conflicting interest;
(3) Disciplinary action (including removal from the service); or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise, shall be effected in
accordance with applicable laws, Executive orders, and regulations.
(c) No disciplinary or remedial action may be taken under this
section against an employee of another Federal department or agency on
detail to the Department of Commerce other than through and with the
concurrence of the detailed employee's employing agency.
Sec. 0.735-41 Inquiries and exceptions.
(a) Inquiries relating to legal aspects of the limitations set forth
in or cited in or pursuant to this part should be submitted to the
appropriate deputy counselor. Inquiries relating to other aspects of
this part or regulations supplementary thereto should be referred to the
appropriate personnel office.
(b) Within the limits of administrative discretion permitted to the
Department, exceptions to the requirements of this part may be granted
from time to time in unusual cases by the head of the operating unit,
whenever the facts indicate that such an exception would promote the
efficiency of the service. Each request for such an exception should be
submitted in writing to the head of the operating unit concerned, and
shall contain a full statement of the justification for the request.
Reports concerning such requests, if approved, shall be forwarded to the
program Secretarial Officer concerned and to the Assistant Secretary for
Administration by the head of the operating unit concerned.
Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
Authority: 18 U.S.C. 207(j); 5 CFR 737.27.
Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless
otherwise noted.
Sec. 0.735-42 Scope.
(a) These regulations establish procedures for imposing sanctions
against a former employee for violating the post-employment restrictions
of the conflict of interest laws and regulations set
[[Page 11]]
forth in 18 U.S.C. 207 and 5 CFR Part 737. These procedures are
established pursuant to the requirement in 18 U.S.C. 207(j). The General
Counsel is responsible for resolving questions on the legal
interpretation of 18 U.S.C. 207 or regulations issued thereunder and for
advising employees on these provisions.
(b) For purposes of this subpart, (1) ``Former employee'' means a
former Government employee as defined in 5 CFR 737.3(a)(4) who had
served in the Department;
(2) ``Lesser included sanctions'' means sanctions of the same type
but more limited scope as the proposed sanction; thus a bar on
communication with an operating unit is a lesser included sanction of a
proposed bar on communication with the Department and a bar on
communication for one year is a lesser included sanction of a proposed
five year bar;
(3) ``Assistant Secretary'' means the Assistant Secretary for
Administration or designee;
(4) ``Director'' means the Director for Personnel and Civil Rights,
Office of the Secretary, or designee;
(5) ``Inspector General'' and ``General Counsel'' include any
persons designated by them to perform their functions under this
subpart; and
(6) ``Days'' means calendar days except that a dead-line which falls
on a weekend or holiday shall be extended to the next working day.
Sec. 0.735-43 Report of violations and investigation.
(a) If an employee has information which indicates that a former
employee has violated any provisions of 18 U.S.C. 207 or regulations
thereunder, that employee shall report such information to the Inspector
General.
(b) Upon receiving information as set forth in paragraph (a) of this
section from an employee or any other person, the Inspector General,
upon a determination that it is nonfrivolous, shall expeditiously
provide the information to the Director, Office of Government Ethics,
and to the Criminal Division, Department of Justice. The Inspector
General shall coordinate any investigation under this subpart with the
Department of Justice, unless the Department of Justice informs the
Inspector General that it does not intend to initiate criminal
prosecution.
(c) All investigations under this subpart shall be conducted in such
a way as to protect the privacy of former employees. To ensure this, to
the extent reasonable and practical, any information received as a
result of an investigation shall remain confidential except as necessary
to carry out the purposes of this subpart, including the conduct of an
investigation, hearing, or judicial proceeding arising thereunder, or as
may be required to be released by law.
(d) The Inspector General shall report the findings of the
investigation to the Director.
Sec. 0.735-44 Initiation of proceedings.
If the Director determines, after an investigation by the Inspector
General, that there is reasonable cause to believe that a former
employee has violated post-employment statutes or regulations, the
Director shall initiate administrative proceedings under this subpart by
proposing sanctions against the former employee and by providing notice
to the former employee as set forth in Sec. 0.735-45.
Sec. 0.735-45 Notice.
(a) The Director shall notify the former employee of the proposed
disciplinary action in writing by registered or certified mail, return
receipt requested, or by any means which gives actual notice or is
reasonably calculated to give actual notice. Notice shall be considered
received if sent to the last known address of the former employee.
(b) The notice shall include:
(1) A statement of allegations and the basis thereof sufficiently
detailed to enable the former employee to prepare a defense;
(2) A statement that the former employee is entitled to a hearing if
requested within 20 days from date of notice;
(3) An explanation of the method by which the former employee may
request a hearing under this subpart including the name, address, and
telephone number of the person to contact if there are further
questions;
[[Page 12]]
(4) A statement that the former employee has the right to submit
documentary evidence to the Director if a hearing is not requested and
an explanation of the method of submitting such evidence and the date by
which it must be received; and
(5) A statement of the sanctions which have been proposed.
Sec. 0.735-46 Hearing.
(a) Examiner. (1) Upon timely receipt of a request for a hearing,
the Director shall refer the matter to the Assistant Secretary who shall
appoint an examiner to conduct the hearing and render an initial
decision.
(2) The examiner shall be impartial, shall not be an individual who
has participated in any manner in the decision to initiate the
proceedings, and shall not have been employed under the immediate
supervision of the former employee or have been employed under a common
immediate supervisor. The examiner shall be admitted to practice law and
have suitable experience and training to conduct the hearing, reach a
determination and render an initial decision in an equitable manner.
(b) Time, date, and place. The hearing shall be conducted at a
reasonable time, date, and place as set by the examiner. In setting the
date, the examiner shall give due regard to the need for both parties to
adequately prepare for the hearing and the importance of expeditiously
resolving allegations that may be damaging to the former employee's
reputation.
(c) Former employee's rights. At a hearing, the former employee
shall have the right:
(1) To represent himself or herself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical
evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on
request.
(d) Procedure and evidence. In a hearing under this subpart, the
Federal Rules of Evidence and Civil Procedure do not apply but the
examiner shall exclude irrelevant or unduly repetitious evidence and all
testimony shall be taken under oath or affirmation. The examiner may
make such orders and determinations regarding the admissibility of
evidence, conduct of examination and cross-examination, and similar
matters which the examiner deems necessary or appropriate to ensure
orderliness in the proceedings and fundamental fairness to the parties.
There shall be no discovery unless agreed to by the parties and ordered
by the examiner. The hearing shall not be open to the public unless the
former employee or the former employee's representative waives the right
to a closed hearing, in which case the examiner shall determine whether
the hearing will be open to the public.
(e) Ex-parte communications. The former employee, the former
employee's representative, and the agency representative shall not make
any ex-parte communications to the examiner concerning the merits of the
allegations against the former employee prior to the issuance of the
initial decision.
(f) Initial decision. (1) The proposed sanctions shall be sustained
in an initial decision upon a determination by the examiner that the
preponderance of the evidence indicated a violation of post-employment
statutes or regulations.
(2) The examiner shall issue an initial decision which is based
exclusively on the transcript of testimony and exhibits together with
all papers and requests filed in connection with the proceeding and
which sets forth all findings of fact and conclusions of law relevant to
the matter at issue.
(3) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-47 Decision absent a hearing.
(a) If the former employee does not request a hearing in a timely
manner, the Director shall make an initial decision on the basis of
information compiled in the investigation, and any submissions made by
the former employee.
(b) The proposed sanction or a lesser included sanction shall be
imposed if the record indicates a violation of post-employment statutes
or regulations by a preponderance of the evidence.
[[Page 13]]
(c) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-48 Administrative appeal.
(a) Within 30 days after issuance of the initial decision, either
party may appeal the initial decision or any portion thereof to the
Assistant Secretary. The opposing party shall have 20 days to respond.
(b) If an appeal is filed, the Assistant Secretary shall issue a
final decision which shall be based solely on the record, or portions
thereof cited by the parties to limit issues, and the appeal and
response. The Assistant Secretary shall also decide whether to impose
the proposed sanction or a lesser included sanction.
(c) If the final decision modifies or reverses the initial decision,
it shall state findings of fact and conclusions of law which differ from
the initial decision.
Sec. 0.735-49 Sanctions.
(a) If there has been a final determination that the former employee
has violated post-employment statutes or regulations, the Director shall
impose, subject to the authority of the Assistant Secretary under Sec.
0.735-48(b), the sanction which was proposed in the notice to the former
employee or a lesser included sanction.
(b) Sanctions which may be imposed include:
(1) Prohibiting the former employee from making, on behalf of any
other person except the United States, any formal or informal appearance
before or, with the intent to influence, any oral or written
communication to the Department or any organizational sub-unit thereof
on any matter of business for a period not to exceed five years; and
(2) Other appropriate disciplinary action.
(c) The Director may enforce the sanctions of paragraph (b)(1) of
this section by directing any or all employees to refuse to participate
in any such appearance or to accept any such communication. As a method
of enforcement, the Director may establish a list of former employees
against whom sanctions have been imposed.
Sec. 0.735-50 Judicial review.
Any former employee found to have violated 18 U.S.C. 207, or
regulations issued thereunder, by a final administrative decision under
this subpart may seek judicial review of the administrative
determination.
Sec. Appendix A to Part 0--Statutes Governing Conduct of Federal
Employees
There are numerous statutes pertaining to the ethical and other
conduct of Federal employees, far too many to attempt to list them all.
Consequently, only the more important ones of general applicability are
referred to in this appendix.
a. bribery and graft
.01 Title 18, U.S.C., section 201, prohibits anyone from bribing or
attempting to bribe a public official by corruptly giving, offering, or
promising him or any person selected by him, anything of value with
intent (a) to influence any official act by him, (b) to influence him to
commit or allow any fraud on the United States, or (c) to induce him to
do or omit to do any act in violation of his lawful duty. As used in
section 201, ``Public officials'' is broadly defined to include
officers, employees, and other persons carrying on activities for or on
behalf of the Government.
.02 Section 201 also prohibits a public official's solicitation or
acceptance of, or agreement to take, a bribe. In addition, it forbids
offers or payments to, and solicitations or receipt by, a public
official of anything of value ``for or because of'' any official act
performed or to be performed by him.
.03 Section 201 further prohibits the offering to or the acceptance
by a witness of anything of value involving intent to influence his
testimony at a trial, Congressional hearing, or agency proceeding. A
similar provision applies to witnesses ``for or because of'' testimony
given or to be given. The provisions summarized in this section do not
preclude lawful witness fees, travel and subsistence expenses, or
reasonable compensation for expert testimony.
b. compensation to officers and employees in matters affecting the
government
.01 Title 18, U.S.C., section 203, prohibits an officer or employee
from receiving compensation for services rendered for others before a
Federal department or agency in matters in which the Government is a
party or is interested.
.02 Section 203 applies to a special Government employee as follows:
[[Page 14]]
a. If the special Government employee has served in the Department
of Commerce more than 60 days during the preceding period of 365 days,
section 203 applies to him only in relation to a particular matter
involving a specific party or parties (1) in which he has at any time
participated personally and substantially in his governmental capacity,
or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
203 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 203 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
c. activities of officers and employees in claims against and other
matters affecting the government
.01 Title 18, U.S.C., section 205, prohibits an officer or employee,
otherwise than in the performance of his official duties, from:
a. Acting as agent or attorney for prosecuting any claim against the
United States, or receiving any gratuity, or any share of or interest in
any such claim in consideration of assistance in the prosecution of such
claims; or
b. Acting as agent or attorney for anyone before any Government
agency, court, or officer in connection with any matter in which the
United States is a party or has a direct and substantial interest.
.02 Section 205 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department
more than 60 days during the preceding period of 365 days, section 205
applies to him only in relation to a particular matter involving a
specific party or parties (1) in which he has at any time participated
personally and substantially in his governmental capacity, or (2) which
is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
205 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 205 does not preclude:
a. An employee, if not inconsistent with faithful performance of his
duties, from acting without compensation as agent or attorney for any
person who is the subject of disciplinary, loyalty, or other personnel
administration proceedings, in connection with those proceedings; or
b. An employee from giving testimony under oath or from making
statements required to be made under penalty for perjury or contempt.
.04 Sections 203 and 205 do not preclude:
a. An employee from acting as agent or attorney for his parents,
spouse, child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary, except in those matters in which he has participated
personally and substantially as a Government employee or which are the
subject of his official responsibility, provided the head of the
operating unit concerned approves; or
b. A special Government employee from acting as agent or attorney
for another person in the performance of work under a grant by, or a
contract with, or for the benefit of, the United States, provided the
head of the operating unit concerned, with the approval of the
appropriate program Secretarial Officer, shall certify in writing that
the national interest so requires, and such certification shall be
published in the Federal Register.
.05 Section 205 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
d. disqualification of former officers and employees in matters
connected with former duties or official responsibilities;
disqualification of partners
.01 Title 18 U.S.C., section 207:
a. Provides that a former Government officer or employee, including
a former special Government employee, shall be permanently barred from
acting as agent or attorney for anyone other than the United States in
any matter in which the United States is a party or is interested and in
which he participated personally and substantially in a governmental
capacity;
b. Bars a former Government officer or employee, including a special
Government employee, of an agency, for a period of 1 year after his
employment with it has ceased, from appearing personally as agent or
attorney for another person before any court or agency in connection
with a matter in which the Government has an interest and which was
under his official responsibility at the employing agency (e.g.,
Department of Commerce) at any time within 1 year prior to the end of
such responsibility; and
c. Prohibits a partner of a person employed by the Government,
including a special Government employee, from acting as agent or
attorney for anyone other than the United States in matters in which the
employee participates or has participated personally and substantially
for the Government or which are the subject of his official
responsibility.
[[Page 15]]
.02 Subparagraphs .01a. and .01b. of this section do not prevent a
former officer or employee or special Government employee who has
outstanding scientific or technical qualifications from acting as
attorney or agent or appearing personally before the Department of
Commerce in connection with a particular matter in a scientific or
technological field if the Assistant Secretary of Commerce for Science
and Technology shall make a certification in writing, published in the
Federal Register, that the national interest would be served by such
action or appearance by the former officer or employee.
e. acts affecting a personal financial interest
.01 Title 18, U.S.C., section 208 prohibits an officer or employee,
including a special Government employee, from participating personally
and substantially in a governmental capacity in any matter in which, to
his knowledge, he, his spouse, minor child, partner, organization in
which he is serving as officer, director, trustee, partner, or employee,
or any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a financial interest.
.02 Section 208 does not apply:
a. If the officer or employee first advises the head of the
operating unit concerned of the nature and circumstances of the matter
involved, makes full disclosure of the financial interest, and receives
in advance a written determination made by such official, with the
approval of the appropriate program Secretarial Officer, that the
interest is not so substantial as to be deemed likely to affect the
integrity of the services which the Government may expect from the
officer or employee; or
b. If, by general rule or regulation published in the Federal
Register, the financial interest has been exempted from the requirements
of section 208 as being too remote or too inconsequential to affect the
integrity of Government officers' or employees' services.
f. salary of government officials and employees
.01 Title 18, U.S.C., section 209, prohibits:
a. An officer or employee from receiving any salary, or any
contribution to or supplementation of salary, as compensation for his
services as an officer or employee of the United States from any source
other than the Government of the United States, except as may be
contributed out of the treasury of a State, county, or municipality; and
b. Any person or organization from paying, contributing to, or
supplementing the salary of an officer or employee under circumstances
which would make its receipt a violation of subparagraph .01a. of this
section.
.02 Section 209:
a. Does not prevent a Government employee from continuing to
participate in a bona fide pension or other welfare plan maintained by a
former employer;
b. Exempts special Government employees and employees serving the
Government without compensation, and grants a corresponding exemption to
any outside person paying compensation to such individuals; and
c. Does not prohibit the payment or acceptance of sums under the
terms of the Government Employees Training Act.
g. code of ethics for government service
``Code of Ethics for Government Service,'' House Concurrent
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11,
1958, which reads as follows:
``Any Person in Government Service Should:
``Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
``UPHOLD the Constitution, laws, and legal regulations of the United
States and all governments therein and never be a party to their
evasion.
``GIVE a full day's labor for a full day's pay; giving to the
performance of his duties his earnest effort and best thought.
``SEEK to find and employ more efficient and economical ways of
getting tasks accomplished.
``NEVER discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not; and never accept
for himself or his family, favors or benefits under circumstances which
might be construed by reasonable persons as influencing the performance
of his governmental duties.
``MAKE no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
``ENGAGE in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
his governmental duties.
``NEVER use any information coming to him confidentially in the
performance of governmental duties as a means for making private profit.
``EXPOSE corruption wherever discovered.
``UPHOLD these principles, ever conscious that public office is a
public trust.''
h. prohibitions
.01 The prohibition against lobbying with appropriated funds (18
U.S.C. 1913) reads as follows:
[[Page 16]]
``No part of the money appropriated by any enactment of Congress
shall, in the absence of express authorization by Congress, be used
directly or indirectly to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other device,
intended or designed to influence in any manner a Member of Congress, to
favor or oppose, by vote or otherwise, any legislation or appropriation
by Congress, whether before or after the introduction of any bill or
resolution proposing such legislation or appropriation, but this shall
not prevent officers or employees of the United States or of its
departments or agencies from communicating to Members of Congress on the
request of any Member or to Congress, through the proper official
channels, requests for legislation or appropriations which they deem
necessary for the efficient conduct of the public business.
``Whoever, being an officer or employee of the United States or of
any department or agency thereof, violates or attempts to violate this
section, shall be fined not more than $500 or imprisoned not more than 1
year, or both; and after notice and hearing by the superior officer
vested with the power of removing him, shall be removed from office or
employment.''
.02 The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918). An individual may not accept or hold a position in the
Government of the United States if he:
a. Advocates the overthrow of our constitutional form of government;
b. Is a member of an organization that he knows advocates the
overthrow of our constitutional form of government;
c. Participates in a strike, or asserts the right to strike, against
the Government of the United States or the government of the District of
Columbia; or
d. Is a member of an organization of employees of the Government of
the United States or of individuals employed by the government of the
District of Columbia that he knows asserts the right to strike against
the Government of the United States or the government of the District of
Columbia.
.03 The prohibition against employment of a member of a Communist
organization (50 U.S.C. 784).
.04 The prohibitions against (a) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of
confidential information (18 U.S.C. 1905). Each employee who has access
to classified information, e.g., confidential, secret, or top secret, or
to a restricted area is responsible for knowing and for complying
strictly with the security regulations of the Department of Commerce.
(See Administrative Order 207-2.)
.05 The prohibition against employment in the competitive civil
service of any person who habitually uses intoxicating beverages to
excess (5 U.S.C. 7352).
.06 The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a
Government-owned or Government-leased passenger motor vehicle or
aircraft for other than official purposes.
.07 The prohibition against the use of the franking privilege to
avoid payment of postage on private mail (18 U.S.C. 1719).
.08 The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
.09 The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001). An employee in connection with an
official matter shall not knowingly and willfully conceal or cover up a
material fact or falsify official papers or documents.
.10 The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071). No employee may conceal, remove, mutilate, or destroy
Government documents or records except for the disposition of records in
accordance with law or regulation.
.11 The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508). Falsely making, altering or
forging, in whole or in part, any form of transportation request is
prohibited.
.12 The prohibitions against:
a. Embezzlement of Government money or property (18 U.S.C. 641). No
employee may convert any Government money or Government property to his
own use or the use of another person.
b. Failure to account for public money (18 U.S.C. 643). Any
employee, who, having received public money which he is not authorized
to retain, fails to render his accounts for same as provided by law, is
guilty of embezzlement.
c. Embezzlement of the money or property of another person in the
possession of the employee by reason of his employment (18 U.S.C. 654).
An employee is prohibited from embezzling or wrongfully converting for
his own use the money or property of another which comes under his
control as the result of his employment.
.13 The prohibition against unauthorized removal or use of documents
relating to claims from or by the Government (18 U.S.C. 285). No
employee, without authority, may remove from the place where it was kept
by authority of the United States any document, record, file, or paper
intended to be used to procure the payment of money from or by the
United States or the allowance or payment of any claim against the
United States, regardless of whether the document or paper has already
been used or the claim has already been allowed or paid; and no employee
may use or attempt to use any such document, record, file, or paper to
procure
[[Page 17]]
the payment of any money from or by the United States or the allowance
or payment of any claim against the United States.
.14 The prohibition against proscribed political activities,
including the following, among others:
a. Using official authority or influence for the purpose of
interfering with or influencing the result of an election, except as
authorized by law (5 U.S.C. 7324);
b. Taking an active part in political management or in political
campaigns, except as authorized by law (5 U.S.C. 7324);
c. Offering or promising to pay anything of value in consideration
of the use of, or promise to use, any influence to procure any
appointive office or place under the United States for any person (18
U.S.C. 210);
d. Soliciting or receiving, either as a political contribution or
for personal emolument, anything of value in consideration of a promise
of support or use of influence in obtaining for any person any
appointive office or place under the United States (18 U.S.C. 211);
e. Using official authority to interfere with a Federal election (18
U.S.C. 595);
f. Promising any employment compensation, or other benefit made
possible by Act of Congress in consideration of political activity or
support (18 U.S.C. 600);
g. Action by a Federal officer or employee to solicit or receive, or
to be in any manner concerned with soliciting or receiving, any
contribution for any political purpose whatever from any other Federal
officer or employee or from any person receiving compensation for
services from money derived from the Treasury of the United States (18
U.S.C. 602);
h. Soliciting or receiving (by any person) anything of value for any
political purpose whatever on any Government premises (18 U.S.C. 603);
i. Soliciting or receiving contributions for political purposes from
anyone on Federal relief or work relief (18 U.S.C. 604);
j. Payment of a contribution for political purposes by any Federal
officer or employee to another Federal officer or employee (18 U.S.C.
607); and
k. Payment of a political contribution in excess of statutory
limitations and purchase of goods, commodities, advertising, or articles
the proceeds of which inure to the benefit of certain political
candidates or organizations (18 U.S.C. 608).
.15 The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
PART 1_THE SEAL OF THE DEPARTMENT OF COMMERCE--Table of Contents
Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.
Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.
Source: 33 FR 9337, June 26, 1968, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of this part is to describe the seal of the Department
of Commerce and to delegate authority to affix the seal to
certifications and documents of the Department.
Sec. 1.2 Description and design.
(a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15
U.S.C. 1501), which established the Department of Commerce, provided
that ``The said Secretary shall cause a seal of office to be made for
the said department of such device as the President shall approve, and
judicial notice shall be taken of the said seal.'' On April 4, 1913, the
President approved and declared to be the seal of the Department of
Commerce the device which he described as follows:
Arms: Per fesse azure and or, a ship in full sail on waves of the
sea, in chief proper; and in base a lighthouse illumined proper.
Crest: The American Eagle displayed. Around the Arms, between two
concentric circles, are the words:
Department of Commerce
United States of America
(b) The design of the approved seal is as shown below. Where
necessitated by requirements of legibility, immediate comprehension, or
clean reproduction, the concentric circles may be eliminated from the
seal on publications and exhibits, and in slides, motion pictures, and
television. In more formal uses of the seal, such as on letterheads, the
full, proper rendition of the seal shall be used.
[[Page 18]]
[GRAPHIC] [TIFF OMITTED] TC20SE91.005
(c) The official symbolism of the seal shall be the following: The
ship is a symbol of commerce; the blue denotes uprightness and
constancy; the lighthouse is a well-known symbol representing guidance
from the darkness which is translated to commercial enlightenment; and
the gold denotes purity. The crest is the American bald eagle denoting
the national scope of the Department's activities. (The above is a
modification of the original symbolism issued with the President's
approval of the seal, made necessary by
changes in the functions of the Department.)
Sec. 1.3 Delegation of authority.
(a) Pursuant to authority vested in the Secretary of Commerce by
law, (1) the Chief Administrative Officer of each operating unit, and
(2) the Director, Office of Administrative Services in the Office of the
Secretary, are hereby authorized to sign as Certifying Officers
certifications as to the official nature of copies of correspondence and
records from the files, publications and other documents of the
Department and to affix the seal of the Department of Commerce to such
certifications or documents for all purposes, including the purpose
authorized by 28 U.S.C. 1733(b).
(b) Delegations of authority to persons other than those named in
paragraph (a) of this section may be made by the Assistant Secretary for
Administration.
(c) This delegation shall not affect or prejudice the use of
properly authorized office or bureau seals in appropriate cases.
PART 2_PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE
FEDERAL TORT CLAIMS ACT--Table of Contents
Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Supplementary regulations.
Authority: 28 U.S.C. 2672.
Sec. 2.1 Purpose.
(a) The purpose of this part is to delegate authority to settle or
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-
2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to establish
procedures for the administrative adjudication of such claims accruing
on or after January 18, 1967.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]
Sec. 2.2 Provisions of law and regulations thereunder.
(a) Section 2672 of Title 28, U.S. Code, as above amended, provides
that:
The head of each Federal agency or his designee, in accordance with
regulations prescribed by the Attorney General, may consider, ascertain,
adjust, determine, compromise, and settle any claim for money damages
against the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred: Provided, that any award,
compromise, or settlement in excess of $25,000 shall be effected only
with the prior written approval of the Attorney General or his designee.
Subject to the provisions of this title relating to civil actions on
tort claims against the United States, any such award, compromise,
settlement, or determination shall be final and conclusive on all
officers of the Government, except when procured by means of fraud.
[[Page 19]]
Any award, compromise, or settlement in an amount of $2,500 or less
made pursuant to this section shall be paid by the head of the Federal
agency concerned out of appropriations available to that agency. Payment
of any award, compromise, or settlement in an amount in excess of $2,500
made pursuant to this section or made by the Attorney General in any
amount pursuant to section 2677 of this title shall be paid in a manner
similar to judgments and compromises in like causes and appropriations
or funds available for the payment of such judgments and compromises are
hereby made available for the payment of awards, compromises, or
settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or
settlement shall be final and conclusive on the claimant, and shall
constitute a complete release of any claim against the United States and
against the employee of the Government whose act or omission gave rise
to the claim, by reason of the same subject matter.
(b) Subsection (a) section 2675 of said Title 28 provides that:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail. The failure of an agency to make final disposition of a
claim within 6 months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section. The provisions of this subsection shall not
apply to such claims as may be asserted under the Federal Rules of Civil
Procedure by third party complaint, crossclaim, or counterclaim.
(c) Section 2678 of said Title 28 provides that no attorney shall
charge fees in excess of 25 percent of a judgment or settlement after
litigation, or over 20 percent of administrative settlements.
(d) Section 2401(b) of said Title 28 provides that:
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within 2 years after such claim accrues or unless action is begun within
6 months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was
presented.
(e) Pursuant to section 2672 as amended, the Attorney General has
issued regulations (herein referred to as ``the Regulations''; 28 CFR
Part 14) prescribing standards and procedures for settlement of tort
claims (31 FR 16616). Persons delegated authority under this part shall
follow and be guided by such Regulations (28 CFR Part 14).
[32 FR 3769, Mar. 7, 1967, as amended at 63 FR 29945, June 2, 1998]
Sec. 2.3 Delegation of authority.
(a) The General Counsel is hereby named as the designee of the
Secretary ofCommerce with respect to tort claims filed under section
2672 of Title 28, U.S. Code, as described in Sec. 2.2, with authority
to act on such claims as provided in said section 2672, including denial
thereof.
(b) Authority delegated under this section may, with the approval of
the General Counsel, be redelegated to other designees.
(c) Settlement or denial of any claim under this part is final for
the Department of Commerce.
[48 FR 31636, July 11, 1983]
Sec. 2.4 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to Sec. Sec. 14.2, 14.3, and 14.4 of the Regulations (28 CFR
Part 14).
(b) Claims shall be filed with the Assistant General Counsel for
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
(c) If a claim is filed elsewhere in the Department, it shall
immediately be recorded and transmitted to the Assistant General Counsel
for Finance and Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.5 Adjudication and settlement of claims.
(a) Upon receipt of a claim by the Assistant General Counsel for
Finance and Litigation, the time and date of receipt shall be recorded.
The Assistant General Counsel may, after recording the claim, transmit
it to the Departmental office or primary operating unit involved in the
claim and request
[[Page 20]]
that an investigation be conducted. The appropriate Departmental office
or primary operating unit shall designate an official to conduct the
investigation, who shall prepare a file, obtain additional information
as necessary, and prepare for the Assistant General Counsel's signature
a proposed award or denial of the claim. If the investigation
capabilities of the office or unit are insufficient for a proper and
complete investigation, the office or unit shall consult with the
Departmental Office of Investigations and Security to:
(1) Have that Office conduct the investigation or
(2) Request another Federal agency to conduct the investigation as
necessary, pursuant to Sec. 14.8 of the regulations (28 CFR Part 14),
all on a reimbursable basis.
(b) If the amount of the proposed award exceeds $25,000 (in which
case, approval by the Attorney General is required), or if consultation
with the Department of Justice is desired or required pursuant to Sec.
14.6 of the regulations, the Assistant General Counsel for Finance and
Litigation will prepare and compile the material required by the
Department of Justice under Sec. 14.7 of the Regulations.
(c) Denial of a claim shall be communicated as provided by Sec.
14.9 of the regulations (28 CFR Part 14).
(d) Designees hereunder are responsible for the control over and
expeditious handling of claims, bearing in mind the applicable statutory
time limitations for adjudications of claims.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.6 Payment of claims.
When an award is made, the file on the case shall be transmitted to
the appropriate fiscal office for payment by the Department or for
transmittal for payment as prescribed by Sec. 14.10 of the Regulations
(28 CFR Part 14). Prior to payment appropriate releases shall be
obtained, as provided in said section.
[32 FR 3769, Mar. 7, 1967]
Sec. 2.7 Supplementary regulations.
(a) The Assistant General Counsel for Finance and Litigation may
from time to time issue such supplementary regulations or instructions
as he/she deems appropriate to carry out the purpose of this part.
(b) Any designee mentioned in paragraph (a) of Sec. 2.3 may issue
regulations or instructions covering his/her area of responsibility
hereunder which are consistent with this part and with those issued
under paragraph (a) of this section, such regulations and instructions
to be approved by the Assistant General Counsel for Finance and
Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983.
Redesignated and amended at 63 FR 29945, June 2, 1998]
PART 3 [RESERVED]
PART 4_DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents
Subpart A_Freedom of Information Act
Sec.
4.1 General.
4.2 Public reference facilities.
4.3 Records under the FOIA.
4.4 Requirements for making requests.
4.5 Responsibility for responding to requests.
4.6 Time limits and expedited processing.
4.7 Responses to requests.
4.8 Classified information.
4.9 Business Information.
4.10 Appeals from initial determinations or untimely delays.
4.11 Fees.
Subpart B_Privacy Act
4.21 Purpose and scope.
4.22 Definitions.
4.23 Procedures for making inquiries.
4.24 Procedures for making requests for records.
4.25 Disclosure of requested records to individuals.
4.26 Special procedures: Medical records.
4.27 Procedures for making requests for correction or amendment.
4.28 Agency review of requests for correction or amendment.
4.29 Appeal of initial adverse agency determination on correction or
amendment.
4.30 Disclosure of record to person other than the individual to whom it
pertains.
4.31 Fees.
4.32 Penalties.
4.33 General exemptions.
4.34 Specific exemptions.
[[Page 21]]
Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the
Freedom of Information Act and Privacy Act, and Requests for
Correction or Amendment Under the Privacy Act.
Appendix B to Part 4--Officials Authorized To Deny Requests for Records
Under the Freedom of Information Act, and Requests for Records
and Requests for Correction or Amendment Under the Privacy
Act.
Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department, and
Applicability of This Part Thereto.
Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553;
31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
Source: 66 FR 65632, Dec. 20, 2001, unless otherwise noted.
Subpart A_Freedom of Information Act
Sec. 4.1 General.
(a) The information in this part is furnished for the guidance of
the public and in compliance with the requirements of the Freedom of
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth
the procedures the Department of Commerce (Department) and its
components follow to make publicly available the materials and indices
specified in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C.
552(a)(3). Information routinely provided to the public as part of a
regular Department activity (for example, press releases issued by the
Office of Public Affairs) may be provided to the public without
following this part.
(b) As used in this subpart, component means any office, division,
bureau or other unit of the Department listed in Appendix A to this part
(except that a regional office of a larger office or other unit does not
constitute a separate component).
Sec. 4.2 Public reference facilities.
(a) The Department maintains public reference facilities (listed in
Appendix A to this part) that contain the records the FOIA requires to
be made regularly available for public inspection and copying; furnishes
information; receives and processes requests for records under the FOIA;
and otherwise assists the public concerning Department operations under
the FOIA.
(b) Each component of the Department shall determine which of its
records are required to be made available for public inspection and
copying, and make those records available either in its own public
reference facility or in the Department's Central Reference and Records
Inspection Facility. Each component shall maintain and make available
for public inspection and copying a current subject-matter index of its
public inspection facility records. Each index shall be updated
regularly, at least quarterly, with respect to newly included records.
In accordance with 5 U.S.C. 552(a)(2), the Department has determined
that it is unnecessary and impracticable to publish quarterly or more
frequently and distribute copies of the index and supplements thereto.
(c) Each component shall make public inspection facility records
created on or after November 1, 1996 available electronically through
the Department's ``FOIA Home Page'' link found at the Department's World
Wide Web site (http://www.doc.gov). Information available at the site
shall include:
(1) Each component's index of its public inspection facility
records, which indicates which records are available electronically; and
(2) The general index referred to in paragraph (d)(3) of this
section.
(d) The Department shall maintain and make available for public
inspection and copying:
(1) A current index providing identifying information for the public
as to any matter that is issued, adopted, or promulgated after July 4,
1997, and that is retained as a record and is required to be made
available or published. Copies of the index are available upon request
after payment of the direct cost of duplication;
(2) Copies of records that have been released and that the component
that maintains them determines, because of their subject matter, have
become or are likely to become the subject of subsequent requests for
substantially the same records;
[[Page 22]]
(3) A general index of the records described in paragraph (d)(2) of
this section;
(4) Final opinions and orders, including concurring and dissenting
opinions made in the adjudication of cases;
(5) Those statements of policy and interpretations that have been
adopted by a component and are not published in the Federal Register;
and
(6) Administrative staff manuals and instructions to staff that
affect a member of the public.
Sec. 4.3 Records under the FOIA.
(a) Records under the FOIA include all Government records,
regardless of format, medium or physical characteristics, and include
electronic records and information, audiotapes, videotapes, and
photographs.
(b) Under the FOIA, the Department has no obligation to create,
compile, or obtain from outside the Department a record to satisfy a
request. In complying with a request for electronic data, whether the
Department creates or compiles records (as by undertaking significant
programming work) or merely extracts them from an existing database may
be unclear. The Department shall in any case undertake reasonable
efforts to search for the information in electronic format.
(c) Department officials may, upon request, create and provide new
records pursuant to user fee statutes, such as the first paragraph of 15
U.S.C. 1525, or in accordance with authority otherwise provided by law.
Such creation and provision of records is outside the scope of the FOIA.
(d) Components shall preserve all correspondence pertaining to the
requests they receive 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. Components shall not
dispose of records while they are the subject of a pending request,
appeal, or lawsuit under the FOIA.
Sec. 4.4 Requirements for making requests.
(a) A request for records of the Department which are not
customarily made available to the public as part of the Department's
regular informational services must be in writing (and may be sent by
mail, facsimile, or E-mail), and shall be processed under the FOIA,
regardless whether the FOIA is mentioned in the request. Requests should
be mailed to the Department component identified in Appendix A to this
part that maintains those records, or may be sent by facsimile or E-mail
to the numbers or addresses, respectively, listed at the Department's
``FOIA Home Page'' link found at the Department's World Wide Web site
(http://www.doc.gov). \1\ If the proper component cannot be determined,
the request should be sent to the central facility identified in
Appendix A to this part. The central facility will forward the request
to the component(s) it believes most likely to have the requested
records. For the quickest handling, the request (and envelope, if the
request is mailed) should be marked ``Freedom of Information Act
Request.''
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\1\ The United States Patent and Trademark Office (USPTO), which is
established as an agency of the United States within the Department of
Commerce, operates under its own FOIA regulations at 37 CFR part 102,
subpart A. Accordingly, requests for USPTO records should be sent
directly to the USPTO.
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(b) For requests for records about oneself, Sec. 4.24 contains
additional requirements. For requests for records about another
individual, either a written authorization signed by the individual
permitting disclosure of his or her records to the requester or proof
that the individual is deceased (for example, a copy of a death
certificate or an obituary) facilitates processing the request.
(c) The records requested must be described in enough detail to
enable Department personnel to locate them with a reasonable amount of
effort. If possible, a request should include specific information about
each record sought, such as the date, title or name, author, recipient,
and subject matter
[[Page 23]]
of the record, and the name and location of the office where the record
is located. Also, if records about a court case are sought, the title of
the case, the court in which the case was filed, and the nature of the
case should be included. If known, any file designations or descriptions
of the requested records should be included. In general, the more
specifically the request describes the records sought, the greater the
likelihood that the Department will be able to locate those records. If
a component determines that a request does not reasonably describe
records, it shall inform the requester what additional information is
needed or how the request is otherwise insufficient, to enable the
requester to modify the request to meet the requirements of this
section.
Sec. 4.5 Responsibility for responding to requests.
(a) In general. Except as stated in paragraph (b) of this section,
the proper component of the Department to respond to a request for
records is the component that first receives the request and has
responsive records, or the component to which the Departmental Freedom
of Information Officer assigns lead responsibility for responding to the
request. Records responsive to a request shall include those records
within the Department's possession and control as of the date the
Department begins its search for them.
(b) Consultations and referrals. If a component receives a request
for a record in its possession in which another Federal agency subject
to the FOIA has the primary interest, the component shall refer the
record to that agency for direct response to the requester. Ordinarily,
the agency that originated a record will be presumed to have the primary
interest in it. A component shall consult with another Federal agency
before responding to a requester if the component receives a request for
a record in which another Federal agency subject to the FOIA has a
significant interest, but not the primary interest; or another Federal
agency not subject to the FOIA has the primary interest or a significant
interest (see Sec. 4.8 for additional information about referrals of
classified information).
(c) Notice of referral. Whenever a component refers a document to
another Federal agency for direct response to the requester, it
ordinarily shall notify the requester in writing of the referral and
inform the requester of the name of the agency to which the document was
referred.
(d) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled in chronological order,
based on when the FOIA request was received by the first Federal agency.
(e) Agreements regarding consultations and referrals. Components may
make agreements with other Federal agencies to eliminate the need for
consultations or referrals for particular types of records.
[66 FR 65632, Dec. 20, 2001, as amended at 71 FR 31073, June 1, 2006]
Sec. 4.6 Time limits and expedited processing.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Initial response and appeal. Subject to paragraph (c)(1) of this
section, an initial response shall be made within 20 working days (i.e.,
excluding Saturdays, Sundays, and legal public holidays) of the receipt
of a request for a record under this part by the proper component
identified in accordance with Sec. 4.5(a), and an appeal shall be
decided within 20 working days of its receipt by the Office of the
General Counsel.
(c) Unusual circumstances. (1) In unusual circumstances as specified
in paragraph (c)(2) of this section, an official listed in Appendix B to
this part may extend the time limits in paragraph (b) of this section by
notifying the requester in writing as soon as practicable of the unusual
circumstances and of the date by which processing of the request is
expected to be completed. If the extension is for more than ten working
days, the component shall provide the requester an opportunity either to
modify the request so that it may be processed within the applicable
time limit, or to arrange an alternative time frame for
[[Page 24]]
processing the request or a modified request.
(2) As used in this section, unusual circumstances means, but only
to the extent reasonably necessary to properly process the particular
request:
(i) The need to search for and collect the requested records from
field facilities or other establishments separate from the office
processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are the subject
of a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another component or Federal agency having a
substantial interest in the determination of the request.
(3) If 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, the
component may aggregate them. Multiple requests involving unrelated
matters will not be aggregated.
(d) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the number of pages involved, or some other measure of
the amount of work and/or time needed to process the request, and
whether the request qualifies for expedited processing as described in
paragraph (e) of this section.
(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. A component doing so
shall contact the requester by telephone, E-mail, or letter, whichever
is most efficient in each case.
(e) Expedited processing. (1) Requests and appeals shall 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) The loss of substantial due process rights;
(iii) A matter of widespread and exceptional media interest
involving questions about the Government's integrity which affect public
confidence; or
(iv) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing should be sent to the
component listed in Appendix A to this part 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
described in paragraph (e)(1)(iv) 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 described in paragraph (e)(1)(iv) of this
section must also 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.
(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. Solely for purposes
of calculating the foregoing time limit, any request for expedited
processing shall always be considered received on the actual date of
receipt by the proper component. If a request for expedited processing
is granted, the request shall be given priority and processed as soon as
practicable, subject to Sec. 4.11(i). If a request for expedited
processing is denied, any appeal of that decision shall be acted on
expeditiously.
[[Page 25]]
Sec. 4.7 Responses to requests.
(a) Grants of requests. If 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 to be charged under Sec. 4.11 and disclose records to the requester
promptly upon payment of any applicable fee. Records disclosed in part
shall be marked or annotated to show the applicable FOIA exemption(s)
and the amount of information deleted, unless doing so would harm an
interest protected by an applicable exemption. The location of the
information deleted shall also be indicated on the record, if feasible.
(b) Adverse determinations of requests. If a component makes an
adverse determination regarding a request, it shall notify the requester
of that determination in writing. An adverse determination is a denial
of a request in any respect, namely: 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 (except that a determination under Sec. 4.11(j)
that records are to be made available under a fee statute other than the
FOIA is not an adverse determination); a determination against the
requester on any disputed fee matter, including a denial of a request
for a reduction or waiver of fees; or a denial of a request for
expedited processing. Each denial letter shall be signed by an official
listed in Appendix B to this part, and shall include:
(1) The name and title or position of the denying official;
(2) A brief statement of the reason(s) for the denial, including
applicable FOIA exemption(s);
(3) An estimate of the volume of records or information withheld, in
number of pages or some other reasonable form of estimation. This
estimate need not 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 FOIA
exemption; and
(4) A statement that the denial may be appealed, and a list of the
requirements for filing an appeal under Sec. 4.10(b).
Sec. 4.8 Classified Information.
In processing a request for information classified under Executive
Order 12958 or any other executive order concerning the classification
of records, the information shall be reviewed to determine whether it
should remain classified. Ordinarily the component or other Federal
agency that classified the information should conduct the review, except
that if 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 to the component or agency
that classified the underlying information. Information determined to no
longer require classification shall not be withheld on the basis of FOIA
exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess
whether any other FOIA exemptions should be invoked. Appeals involving
classified information shall be processed in accordance with Sec.
4.10(c).
Sec. 4.9 Business Information.
(a) In general. Business information obtained by the Department from
a submitter will be disclosed under the FOIA only under this section.
(b) Definitions. For the purposes of this section:
(1) Business information means commercial or financial information,
obtained by the Department from a submitter, which may be protected from
disclosure under FOIA exemption (b)(4) (5 U.S.C. 552(b)(4)).
(2) Submitter means any person or entity outside the Federal
Government from which the Department obtains business information,
directly or indirectly. The term includes corporations; state, local and
tribal governments; and foreign governments.
(c) Designation of business information. A submitter of business
information should designate by appropriate markings, either at the time
of submission
[[Page 26]]
or at a reasonable time thereafter, any portions of its submission that
it considers protected from disclosure under FOIA exemption (b)(4).
These designations will expire ten years after the date of the
submission unless the submitter requests, and provides justification
for, a longer 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 whenever required under paragraph (e) of
this section, except as provided in paragraph (h) of this section, in
order to give the submitter an opportunity under paragraph (f) of this
section to object to disclosure of any specified portion of that
information. Such written notice shall be sent via certified mail,
return receipt requested, or similar means. The notice shall either
describe the business information requested or include copies of the
requested records containing the information. If notification of a large
number of submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish
notification.
(e) When notice is required. Notice shall be given to the submitter
whenever:
(1) The submitter has designated the information in good faith as
protected from disclosure under FOIA exemption (b)(4); or
(2) The component has reason to believe that the information may be
protected from disclosure under FOIA exemption (b)(4).
(f) Opportunity to object to disclosure. A component shall allow a
submitter seven working days (i.e., excluding Saturdays, Sundays, and
legal public holidays) from the date of receipt of the written notice
described in paragraph (d) of this section to provide the component with
a statement of any objection to disclosure. The statement must identify
any portions of the information the submitter requests to be withheld
under FOIA exemption (b)(4), and describe how each qualifies for
protection under the exemption: that is, why the information is a trade
secret, or commercial or financial information that is privileged or
confidential. If a submitter fails to respond to the notice within the
time specified, the submitter will be considered to have no objection to
disclosure of the information. Information a submitter provides 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 under the FOIA for
nondisclosure in deciding whether to disclose business information. If a
component decides to disclose business information over a submitter's
objection, the component shall give the submitter written notice via
certified mail, return receipt requested, or similar means, which shall
include:
(1) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(2) A description of the business information to be disclosed; and
(3) A statement that the component intends to disclose the
information seven working days from the date the submitter receives 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;
(2) The information has been lawfully 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 Executive Order
12600; or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous, in which case the component
shall provide the submitter written notice of any final decision to
disclose the information seven working days from the date the submitter
receives the notice.
(i) Notice to submitter 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 requester. Whenever a component provides
a submitter with notice and an opportunity to object to disclosure under
paragraph (d) of this section, the component shall
[[Page 27]]
also notify the requester. Whenever a submitter files a lawsuit seeking
to prevent the disclosure of business information, the component shall
notify the requester.
Sec. 4.10 Appeals from initial determinations or untimely delays.
(a) If a request for records is initially denied in whole or in
part, or has not been timely determined, or if a requester receives an
adverse initial determination regarding any other matter under this
subpart (as described in Sec. 4.7(b)), the requester may file a written
appeal or an electronic appeal, which must be received by the Office of
General Counsel during normal business hours (8:30 a.m. to 5 p.m.,
Eastern Time, Monday through Friday) within thirty calendar days of the
date of the written denial or, if there has been no determination, may
be submitted anytime after the due date, including the last extension
under Sec. 4.6(c), of the determination. Written or electronic appeals
arriving after normal business hours will be deemed received on the next
normal business day.
(b) Appeals shall be decided by the Assistant General Counsel for
Administration (AGC-Admin), except that appeals for records which were
initially denied by the AGC-Admin shall be decided by the General
Counsel. Written appeals should be addressed to the AGC-Admin, or the
General Counsel if the records were initially denied by the AGC-Admin.
The address of both is: U.S. Department of Commerce, Office of General
Counsel, Room 5875, 14th and Constitution Avenue NW., Washington, DC
20230. An appeal may also be sent via facsimile at 202-482-2552. For a
written appeal, both the letter and the appeal envelope should be
clearly marked ``Freedom of Information Appeal''. The address for
electronic appeals is [email protected]. The appeal (written or
electronic) must include a copy of the original request and the initial
denial, if any, and a statement of the reasons why the records requested
should be made available and why the initial denial, if any, was in
error. No opportunity for personal appearance, oral argument or hearing
on appeal is provided.
(c) Upon receipt of an appeal involving records initially denied on
the basis of FOIA exemption (b)(1), the records shall be forwarded to
the Deputy Assistant Secretary for Security (DAS) for a declassification
review. The DAS may overrule previous classification determinations in
whole or in part if continued protection in the interest of national
security is no longer required, or no longer required at the same level.
The DAS shall advise the AGC-Admin, or the General Counsel, as
appropriate, of his or her decision.
(d) If an appeal is granted, the person who filed the appeal shall
be immediately notified and copies of the releasable documents shall be
made available promptly thereafter upon receipt of appropriate fees
determined in accordance with Sec. 4.11.
(e) If no determination on an appeal has been sent to the requester
within the twenty working day period specified in Sec. 4.6(b) or the
last extension thereof, the requester is deemed to have exhausted all
administrative remedies with respect to the request, giving rise to a
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the requester
initiates a court action against the Department based on the provision
in this paragraph, the administrative appeal process may continue.
(f) The determination on an appeal shall be in writing and, when it
denies records in whole or in part, the letter to the requester shall
include:
(1) A brief explanation of the basis for the denial, including a
list of the applicable FOIA exemptions and a description of how they
apply;
(2) A statement that the decision is final for the Department;
(3) Notification that judicial review of the denial is available in
the district court of the United States in the district in which the
requester resides, or has his or her principal place of business, or in
which the agency records are located, or in the District of Columbia;
and
(4) The name and title or position of the official responsible for
denying the appeal.
[66 FR 65632, Dec. 20, 2001, as amended at 69 FR 49784, Aug. 12, 2004]
[[Page 28]]
Sec. 4.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
when fees are limited under paragraph (d) of this section or when a
waiver or reduction of fees is granted under paragraph (k) of this
section. A component 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. If it appears that the requester will put the records to a
commercial use, or if a component has reasonable cause to doubt a
requester's asserted non-commercial use, the component shall provide the
requester a reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses a component incurs in
providing a particular service. Such expenses would include, for
example, the labor costs of the employee performing the service (the
basic rate of pay for the employee, plus 16 percent of that rate to
cover benefits). Not included in direct costs are overhead expenses such
as the costs of space, heating, or lighting of the facility in which the
service is performed.
(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 may take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others. A
component shall honor a requester's specified preference of form or
format of disclosure if the component can reproduce the record in the
requested form or format with reasonable effort.
(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
sought to further scholarly research rather than for a commercial use.
(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 sought to further scientific research rather than for a commercial
use.
(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 if they can qualify as disseminators
of ``news'') that make their products available for purchase or
subscription by the general public. For ``freelance'' journalists to be
regarded as working for a news organization, they must demonstrate a
solid basis for expecting publication through that organization. A
publication contract would be the clearest proof, but 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.
[[Page 29]]
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, redacting it and marking any applicable exemptions. Review
costs are recoverable even if a record ultimately is not disclosed.
Review time 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.
(c) Fees. In responding to FOIA requests, components shall charge
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of
this section and explained in paragraphs (c)(3) through (c)(5) of this
section, unless a waiver or reduction of fees has been granted under
paragraph (k) of this section.
(1) The four categories and chargeable fees are:
------------------------------------------------------------------------
Category Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters.......... Search, Review, and
Duplication.
(ii) Educational and Non-commercial Duplication (excluding the cost
Scientific Institution Requesters. of the first 100 pages).
(iii) Representatives of the News Media Duplication (excluding the cost
of the first 100 pages).
(iv) All Other Requesters.............. Search and Duplication
(excluding the cost of the
first 2 hours of search and
100 pages).
------------------------------------------------------------------------
(2) Uniform fee schedule.
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(i) Manual search...................... Actual salary rate of employee
involved, plus 16 percent of
salary rate.
(ii) Computerized search............... Actual direct cost, including
operator time.
(iii) Duplication of records:
(A) Paper copy reproduction........ $.16 per page
(B) Other reproduction (e.g., Actual direct cost, including
computer disk or printout, operator time.
microfilm, microfiche, or
microform).
(iv) Review of records (including Actual salary rate of employee
redaction). conducting review, plus 16
percent of salary rate.
------------------------------------------------------------------------
(3) 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 shall charge
for time spent searching even if they do not locate any responsive
records or if they withhold any records located as entirely exempt from
disclosure. Search fees shall be the direct costs of conducting the
search by the involved employees.
(ii) 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) are entitled to the cost equivalent of two hours of
manual search time without charge.
(4) Duplication. Duplication fees shall 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 shall be $.16 cents per page. For copies produced
by computer, such as tapes or printouts, components shall charge the
direct
[[Page 30]]
costs, including operator time, of producing the copy. For other forms
of duplication, components shall charge the direct costs of that
duplication.
(5) Review. Review fees shall be charged to requesters who make a
commercial use request. Review fees shall be charged only for the
initial record review, in which a component determines whether an
exemption applies to a particular record at the initial request level.
No charge shall be imposed for review at the administrative appeal level
for an exemption already applied. However, records withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously considered
applies, and the costs of that review are chargeable. Review fees shall
be the direct costs of conducting the review by the involved employees.
(d) Limitations on charging fees. (1) No search fee shall be charged
for requests from educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee shall 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 shall 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) If a total fee calculated under paragraph (c) of this section is
$20.00 or less for any request, no fee shall be charged. If such total
fee is more than $20.00, the full amount of such fee shall be charged.
(5) The provisions of paragraphs (d) (3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee shall 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 $20.00.
(e) Notice of anticipated fees over $20.00. If a component
determines or estimates that the total fee to be charged under this
section will be more than $20.00, the component shall notify the
requester of the actual or estimated fee, unless the requester has
stated in writing a willingness to pay a fee as high as that
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. If the component has notified a requester
that the actual or estimated fee is more than $20.00, the component
shall not consider the request received for purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, or process it
further, until the requester agrees to pay the anticipated total fee.
Any agreement to pay should be memorialized in writing. A notice under
this paragraph shall offer the requester an opportunity to contact
Departmental personnel to discuss modifying 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, if a component decides, as a matter of administrative
discretion, to comply with a request for special services, the component
shall charge the direct cost of providing them. Such services could
include certifying that records are true copies or sending records by
other than ordinary mail.
(g) Charging interest. Components shall charge interest on any
unpaid bill starting on the 31st calendar day following the date of
billing the requester. Interest charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and accrue from the date of the billing until
the component receives payment. Components shall take all steps
authorized by the Debt Collection Act of 1982, as amended by the Debt
Collection Improvement Act of 1996, to effect payment, including offset,
disclosure to consumer reporting agencies, and use of collection
agencies.
(h) Aggregating requests. If 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.
Among the factors a component shall consider in deciding whether to
aggregate are the closeness
[[Page 31]]
in time between the component's receipt of the requests, and the
relatedness of the matters about which the requests are made. A
component may generally presume that multiple requests that involve
related matters made by the same requester or a closely related group of
requesters within a 30 calendar day period have been made in order to
avoid fees. If requests are separated by a longer period, a component
shall aggregate them only if a solid basis exists for determining that
aggregation is warranted under all the circumstances involved. Multiple
requests involving unrelated matters shall 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: a payment made before work is
begun or continued on a request. Payment owed for work already completed
(i.e., a payment before copies are sent to a requester) is not an
advance payment.
(2) If a component determines or estimates that a total fee to be
charged under this section will be more than $250.00, the component
shall not consider the request received for purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, or process it
further, until it receives payment from the requester of the entire
anticipated fee.
(3) If a requester has previously failed to pay a properly charged
FOIA fee to any component or other Federal agency within 30 calendar
days of the date of billing, a component shall 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. For purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, the component shall
not consider the request received until it receives full payment of all
applicable fees and interest in this paragraph.
(4) Upon the completion of processing of a request, if a specific
fee is determined to be payable and appropriate notice has been given to
the requester, a component shall make records available to the requester
only upon receipt of full payment of the fee.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute (except
for the FOIA) that specifically requires an agency to set and collect
fees for particular types of records. If records responsive to requests
are maintained for distribution by agencies operating such statutorily
based fee schedule programs, components shall inform requesters how to
obtain records from those sources. Provision of such records is not
handled under the FOIA.
(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, if
the requester asks for such a waiver in writing and the responsible
component determines, after consideration of information provided by the
requester, 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 shall 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
[[Page 32]]
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 likely to contribute to such understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: whether disclosure of the
requested information will contribute to 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 satisfies this
consideration. Merely providing information to media sources is
insufficient to 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 prior to the
disclosure must be significantly enhanced by the disclosure.
(3) To determine whether the second fee waiver requirement (i.e.,
that disclosure is not primarily in the commercial interest of the
requester) is met, components shall 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
request'' 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 to
provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: whether any identified
commercial interest of the requester is sufficiently great, 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 if the public interest standard (paragraph
(k)(1)(i) of this section) is satisfied and the public interest is
greater than any identified commercial interest in disclosure.
Components ordinarily shall presume that if a news media requester has
satisfied the public interest standard, the public interest is the
primary interest 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) If only some of the records to be released satisfy the
requirements for a fee waiver, 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.
Subpart B_Privacy Act
Sec. 4.21 Purpose and scope.
(a) This subpart establishes policies and procedures for
implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). The
main objectives of the subpart are to facilitate full exercise of rights
conferred on individuals under the Act, and to protect the privacy of
individuals on whom the Department maintains records in systems of
records under the Act.
(b) The Department shall act promptly and in accordance with the Act
upon receipt of any inquiry, request or appeal from a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States, regardless of the individual's age. Further, the
Department shall maintain only such information on individuals as is
relevant and necessary to the performance of its lawful functions;
maintain that information with such accuracy, relevancy, timeliness, and
completeness as is reasonably necessary to assure fairness in
determinations made by the Department about the individual; obtain
information from the individual to the extent practicable; and take
every reasonable step
[[Page 33]]
to protect that information from unwarranted disclosure. The Department
shall maintain no record describing how an individual exercises rights
guaranteed by the First Amendment unless expressly authorized to do so
by statute or by the individual about whom the record is maintained, or
unless to do so is pertinent to and within the scope of an authorized
law enforcement activity. An individual's name and address shall not be
sold or rented by the Department unless such action is specifically
authorized by law.
(c) This subpart applies to all components of the Department.
Components may promulgate supplementary orders and rules not
inconsistent with this subpart.
(d) The Assistant Secretary for Administration is delegated
responsibility for maintaining this subpart, for issuing such orders and
directives internal to the Department as are necessary for full
compliance with the Act, and for publishing all required notices
concerning systems of records.
(e) Matters outside the scope of this subpart include:
(1) Requests for records that do not pertain to the requester, or to
the individual about whom the request is made if the requester is the
parent or guardian of the individual;
(2) Requests involving information pertaining to an individual that
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record if a grievance procedure is
available to the individual either by regulation or through a provision
in a collective bargaining agreement with the Department or a component
of the Department, and the individual has initiated, or expressed in
writing the intention of initiating, such a grievance procedure; and
(4) Requests for employee-employer services and counseling that were
routinely granted prior to enactment of the Act, including, but not
limited to, test calculations of retirement benefits, explanations of
health and life insurance programs, and explanations of tax withholding
options.
(f) Any request for records that pertains to the requester, or to
the individual about whom the request is made if the requester is the
parent or guardian of the individual, shall be processed under the Act
and this subpart and under the Freedom of Information Act and the
Department's implementing regulations at subpart A of this part,
regardless whether the Act or the Freedom of Information Act is
mentioned in the request.
Sec. 4.22 Definitions.
(a) All terms used in this subpart which are defined in 5 U.S.C.
552a shall have the same meaning herein.
(b) As used in this subpart:
(1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C.
552a)''.
(2) Appeal means a request by an individual to review and reverse an
initial denial of a request from that individual for correction or
amendment.
(3) Component means any office, division, bureau or other unit of
the Department listed in Appendix A to this part (except that a regional
office of a larger office or other unit does not constitute a separate
component).
(4) Department means the Department of Commerce.
(5) Inquiry means either a request for general information regarding
the Act and this subpart or a request from an individual (or that
individual's parent or guardian) that the Department determine whether
it has any record in a system of records that pertains to that
individual.
(6) Person means any human being and also shall include, but is not
limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private
organizations.
(7) Privacy Officer means those officials, identified in Appendix B
to this part, who are authorized to receive and act upon inquiries,
requests for access, and requests for correction or amendment.
(8) Request for access means a request from an individual or an
individual's parent or guardian to see a record pertaining to that
individual in a particular system of records.
(9) Request for correction or amendment means a request from an
individual or an individual's parent or guardian that the Department
change (by correction,
[[Page 34]]
amendment, addition or deletion) a particular record pertaining to that
individual in a system of records.
Sec. 4.23 Procedures for making inquiries.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit an inquiry to the Department. The inquiry
should be made either in person or by mail addressed to the appropriate
component identified in Appendix A to this part or to the official
identified in the notification procedures paragraph of the systems of
records notice published in the Federal Register. \2\ If an individual
believes the Department maintains a record pertaining to him or her but
does not know which system of records might contain such a record and/or
which component of the Department maintains the system of records,
assistance in person or by mail will be provided at the first address
listed in Appendix A to this part.
---------------------------------------------------------------------------
\2\ The United States Patent and Trademark Office (USPTO), which is
established as an agency of the United States within the Department of
Commerce, operates under its own PA regulations at 37 CFR part 102,
subpart B. Accordingly, requests concerning records maintained by the
USPTO should be sent directly to the USPTO.
---------------------------------------------------------------------------
(b) Inquiries submitted by mail should include the words ``PRIVACY
ACT INQUIRY'' in capital letters at the top of the letter and on the
face of the envelope. If the inquiry is for general information
regarding the Act and this subpart, no particular information is
required. The Department reserves the right to require compliance with
the identification procedures appearing at Sec. 4.24(d). If the inquiry
is a request that the Department determine whether it has a record
pertaining to the individual, the following information should be
submitted:
(1) Name of individual whose record is sought;
(2) Statement that individual whose record is sought is either a
U.S. citizen or an alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of employment,
etc.);
(4) Record sought, by description and by record system name, if
known;
(5) Action requested (that is, sending information on how to
exercise rights under the Act; determining whether requested record
exists; gaining access to requested record; or obtaining copy of
requested record);
(6) Copy of court guardianship order or minor's birth certificate,
as provided in Sec. 4.24(d)(3), but only if requester is guardian or
parent of individual whose record is sought;
(7) Requester's name (printed), signature, address, and (optional)
telephone number;
(8) Date; and,
(9) Certification of request by notary or other official, but only
if
(i) Request is for notification that requested record exists, for
access to requested record, or for copy of requested record;
(ii) Record is not available to any person under 5 U.S.C. 552; and
(iii) Requester does not appear before an employee of the Department
for verification of identity.
(c) Any inquiry which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (b) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. An inquiry
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring the time period for
response until actual receipt by the Privacy Officer. In each instance
when an inquiry so forwarded is received, the Privacy Officer shall
notify the individual that his or her inquiry was improperly addressed
and the date the inquiry was received at the proper address.
(d)(1) Each inquiry received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond within
ten working days (i.e., excluding Saturdays, Sundays and legal public
holidays) of the date of receipt at the proper address. If a response
cannot be made within ten working days, the Privacy Officer shall send
an acknowledgment during that
[[Page 35]]
period providing information on the status of the inquiry and asking for
such further information as may be necessary to process the inquiry. The
first correspondence sent by the Privacy Officer to the requester shall
contain the Department's control number assigned to the request, as well
as a statement that the requester should use that number in all future
contacts with the Department. The Department shall use that control
number in all subsequent correspondence.
(2) If the Privacy Officer fails to send an acknowledgment within
ten working days, as provided in paragraph (d)(1) of this section, the
requester may ask the Assistant General Counsel for Administration to
take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(e) An individual shall not be required to state a reason for or
otherwise justify his or her inquiry.
(f) Special note should be taken that certain agencies are
responsible for publishing notices of systems of records having
Government-wide application to other agencies, including the Department.
The agencies known to be publishing these general notices and the types
of records covered therein appear in Appendix C to this part. These
general notices do not identify the Privacy Officers in the Department
to whom inquiries should be presented or mailed. The provisions of this
section, and particularly paragraph (a) of this section, should be
followed in making inquiries with respect to such records. Such records
in the Department are subject to the provisions of this part to the
extent indicated in Appendix C to this part. The exemptions, if any,
determined by the agency publishing a general notice shall be invoked
and applied by the Department after consultation, as necessary, with
that other agency.
Sec. 4.24 Procedures for making requests for records.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request to the Department for access to
records. The request should be made either in person or by mail
addressed to the appropriate office listed in Appendix A to this part.
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at the top of the letter and on the
face of the envelope. Any request which is not addressed as specified in
paragraph (a) of this section or which is not marked as specified in
this paragraph will be so addressed and marked by Department personnel
and forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date the request was received at the proper address.
(c) If the request follows an inquiry under Sec. 4.23 in connection
with which the individual's identity was established by the Department,
the individual need only indicate the record to which access is sought,
provide the Department control number assigned to the request, and sign
and date the request. If the request is not preceded by an inquiry under
Sec. 4.23, the procedures of this section should be followed.
(d) The requirements for identification of individuals seeking
access to records are:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
(ii) A document, preferably issued for participation in a Federally-
sponsored program, bearing the individual's signature (for example,
unemployment insurance book, employer's identification card, national
credit card, and professional, craft or union membership card); and,
[[Page 36]]
(iii) A document bearing neither the photograph nor the signature of
the individual, preferably issued for participation in a Federally-
sponsored program (for example, Medicaid card). If the individual can
provide no suitable documentation of identity, the Department will
require a signed statement asserting the individual's identity and
stipulating that the individual understands the penalty provision of 5
U.S.C. 552a(i)(3) recited in Sec. 4.32(a). In order to avoid any
unwarranted disclosure of an individual's records, the Department
reserves the right to determine the adequacy of proof of identity
offered by any individual, particularly if the request involves a
sensitive record.
(2) Not in person. If the individual making a request does not
appear in person before a Privacy Officer or other employee authorized
to determine identity, then identity must be determined by:
(i) A certification of a notary public or equivalent officer
empowered to administer oaths must accompany the request under the
circumstances prescribed in Sec. 4.23(b)(9). The certification in or
attached to the letter must be substantially in accordance with the
following text:
City of -------- County of --------. (Name of individual), who
affixed (his) (her) signature below in my presence, came before me, a
(title), in and for the aforesaid County and State, this ---- day of --
--, 20--, and established (his) (her) identity to my satisfaction. My
commission expires --------.
Signature: ------------.; or
(ii) Statement of identity made under 28 U.S.C. 1746, a law that
permits statements to be made under penalty of perjury as a substitute
for notarization.
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the same
manner prescribed in either paragraph (d)(1) or (d)(2) of this section.
In addition, such other individual shall establish his or her identity
in the representative capacity of parent or legal guardian. In the case
of the parent of a minor, the proof of identity shall be a certified or
authenticated copy of the minor's birth certificate. In the case of a
legal guardian of an individual who has been declared incompetent due to
physical or mental incapacity or age by a court of competent
jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
Sec. 4.25(f) are satisfied.
(e) If the provisions of this subpart are alleged to impede an
individual in exercising his or her right to access, the Department will
consider, from an individual making a request, alternative suggestions
regarding proof of identity and access to records.
(f) An individual shall not be required to state a reason for or
otherwise justify his or her request for access to a record.
[66 FR 65632, Dec. 20, 2001, as amended at 73 FR 10381, Feb. 27, 2008]
Sec. 4.25 Disclosure of requested records to individuals.
(a)(1) The responsible Privacy Officer shall act promptly upon each
request. Every effort will be made to respond within ten working days
(i.e., excluding Saturdays, Sundays and legal public holidays) of the
date of receipt. If a response cannot be made within ten working days
due to unusual circumstances, the Privacy Officer shall send an
acknowledgment during that period providing information on the status of
the request and asking for any further information that may be necessary
to process the request. ``Unusual circumstances'' shall include
circumstances in which:
(i) A search for and collection of requested records from inactive
storage, field facilities or other establishments is required;
(ii) A voluminous amount of data is involved;
(iii) Information on other individuals must be separated or expunged
from the particular record; or
(iv) Consultations with other agencies having a substantial interest
in the determination of the request are necessary.
[[Page 37]]
(2) If the Privacy Officer fails to send an acknowledgment within
ten working days, as provided in paragraph (a)(1) of this section, the
requester may ask the Assistant General Counsel for Administration to
take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(b) Grant of access: (1) Notification. An individual shall be
granted access to a record pertaining to him or her, unless the
provisions of paragraph (g)(1) of this section apply. The Privacy
Officer shall notify the individual of a determination to grant access,
and provide the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection. In
no event shall the earliest date be later than thirty calendar days from
the date of notification;
(iv) The estimated date by which a copy of the record will be mailed
and the fee estimate pursuant to Sec. 4.31. In no event shall the
estimated date be later than thirty calendar days from the date of
notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to the
procedures set forth in paragraph (f) of this section; and,
(vi) Any additional prerequisites for granting access to a specific
record.
(2) Methods of access. The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
(i) Inspection in person may be had in the office specified by the
Privacy Officer granting access, during the hours indicated in Appendix
A to this part;
(ii) Transfer of records to a Federal facility more convenient to
the individual may be arranged, but only if the Privacy Officer
determines that a suitable facility is available, that the individual's
access can be properly supervised at that facility, and that transmittal
of the records to that facility will not unduly interfere with
operations of the Department or involve unreasonable costs, in terms of
both money and manpower; and,
(iii) Copies may be mailed at the request of the individual, subject
to payment of the fees prescribed in Sec. 4.31. The Department, at its
own initiative, may elect to provide a copy by mail, in which case no
fee will be charged the individual.
(c) Access to medical records is governed by the provisions of Sec.
4.26.
(d) The Department shall supply such other information and
assistance at the time of access as to make the record intelligible to
the individual.
(e) The Department reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data medium such as tape or disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of the Department be made available to the
individual except under the immediate supervision of the Privacy Officer
or his or her designee.
(f) Any individual who requests access to a record pertaining to
that individual may be accompanied by another individual of his or her
choice. ``Accompanied'' includes discussing the record in the presence
of the other individual. The individual to whom the record pertains
shall authorize the presence of the other individual in writing. The
authorization shall include the name of the other individual, a specific
description of the record to which access is sought, the Department
control number assigned to the request, the date, and the signature of
the individual to whom the record pertains. The other individual shall
sign the authorization in the presence of the Privacy Officer. An
individual shall not be required to state a reason or otherwise justify
his or her decision to be accompanied by another individual during
personal access to a record.
(g) Initial denial of access: (1) Grounds. Access by an individual
to a record that pertains to that individual
[[Page 38]]
will be denied only upon a determination by the Privacy Officer that:
(i) The record is exempt under Sec. 4.33 or 4.34, or exempt by
determination of another agency publishing notice of the system of
records, as described in Sec. 4.23(f);
(ii) The record is information compiled in reasonable anticipation
of a civil action or proceeding;
(iii) The provisions of Sec. 4.26 pertaining to medical records
temporarily have been invoked; or,
(iv) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Officer shall give notice of denial of
access to records to the individual in writing, and the notice shall
include the following information:
(i) The Privacy Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
the Department is available, the notice shall state that the denial is
administratively final; and,
(v) If stated to be administratively final within the Department,
the individual's right to judicial review provided under 5
U.S.C.552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. If a Privacy Officer issues an initial
denial of a request, the individual's opportunities for further
consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the
alternative:
(A) If the individual contests the application of an exemption to
the records, the review procedures in Sec. 4.25(g)(3)(ii) shall apply;
or,
(B) If the individual challenges the validity of the exemption
itself, the individual must file a petition for the issuance, amendment,
or repeal of a rule under 5 U.S.C. 553(e). If the exemption was
determined by the Department, such petition shall be filed with the
Assistant Secretary for Administration. If the exemption was determined
by another agency (as described in Sec. 4.23(f)), the Department will
provide the individual with the name and address of the other agency and
any relief sought by the individual shall be that provided by the
regulations of the other agency. Within the Department, no such denial
is administratively final until such a petition has been filed by the
individual and disposed of on the merits by the Assistant Secretary for
Administration.
(ii) As to denial under paragraphs (g)(1)(ii) of this section,
(g)(1)(iv) of this section or (to the limited extent provided in
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this
section, the individual may file for review with the Assistant General
Counsel for Administration, as indicated in the Privacy Officer's
initial denial notification. The individual and the Department shall
follow the procedures in Sec. 4.28 to the maximum extent practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within the Department is available
because the denial is not administratively final until expiration of the
time period indicated in Sec. 4.26(a).
(h) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
Sec. 4.26 Special procedures: Medical records.
(a) No response to any request for access to medical records from an
individual will be issued by the Privacy Officer for a period of seven
working days (i.e., excluding Saturdays, Sundays and legal public
holidays) from the date of receipt.
(b) For every request from an individual for access to medical
records, the Privacy Officer shall:
(1) Inform the individual of the waiting period prescribed in
paragraph (a) of this section;
[[Page 39]]
(2) Seek from the individual the name and address of the
individual's physician and/or psychologist;
(3) Seek from the individual written consent for the Department to
consult the individual's physician and/or psychologist, if the
Department believes such consultation is advisable;
(4) Seek written consent from the individual for the Department to
provide the medical records to the individual's physician or
psychologist, if the Department believes access to the record by the
individual is best effected under the guidance of the individual's
physician or psychologist; and,
(5) Forward the individual's medical record to the Department's
medical officer for review and a determination on whether consultation
with or transmittal of the medical records to the individual's physician
or psychologist is warranted. If consultation with or transmittal of
such records to the individual's physician or psychologist is determined
to be warranted, the Department's medical officer shall so consult or
transmit. Whether or not such a consultation or transmittal occurs, the
Department's medical officer shall provide instruction to the Privacy
Officer regarding the conditions of access by the individual to his or
her medical records.
(c) If an individual refuses in writing to give the names and
consents set forth in paragraphs (c)(2) through (c)(4) of this section,
the Department shall give the individual access to said records by means
of a copy, provided without cost to the requester, sent registered mail,
return receipt requested.
Sec. 4.27 Procedures for making requests for correction or amendment.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request for correction or amendment to
the Department. The request should be made either in person or by mail
addressed to the Privacy Officer who processed the individual's request
for access to the record, and to whom is delegated authority to make
initial determinations on requests for correction or amendment. The
offices of Privacy Officers are open to the public between the hours of
9 a.m. and 4 p.m. Monday through Friday (excluding Saturdays, Sundays,
and legal public holidays).
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at the top of the letter and on the
face of the envelope. Any request that is not addressed as specified in
paragraph (a) of this section or that is not marked as specified in this
paragraph will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. A request that
is not properly addressed by the individual will not be deemed to have
been ``received'' for purposes of measuring the time period for response
until actual receipt by the Privacy Officer. In each instance when a
request so forwarded is received, the Privacy Officer shall notify the
individual that his or her request was improperly addressed and the date
the request was received at the proper address.
(c) Since the request, in all cases, will follow a request for
access under Sec. 4.25, the individual's identity will be established
by his or her signature on the request and use of the Department control
number assigned to the request.
(d) A request for correction or amendment should include the
following:
(1) Specific identification of the record sought to be corrected or
amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which it is to be inserted or added; and,
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials that
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the record
is unnecessary, inaccurate, irrelevant, untimely or incomplete.
[[Page 40]]
Sec. 4.28 Agency review of requests for correction or amendment.
(a)(1)(i) Not later than ten working days (i.e., excluding
Saturdays, Sundays and legal public holidays) after receipt of a request
to correct or amend a record, the Privacy Officer shall send an
acknowledgment providing an estimate of time within which action will be
taken on the request and asking for such further information as may be
necessary to process the request. The estimate of time may take into
account unusual circumstances as described in Sec. 4.25(a). No
acknowledgment will be sent if the request can be reviewed, processed
and the individual notified of the results of review (either compliance
or denial) within the ten working days. Requests filed in person will be
acknowledged in writing at the time submitted.
(ii) If the Privacy Officer fails to send the acknowledgment within
ten working days, as provided in paragraph (a)(1)(i) of this section,
the requester may ask the Assistant General Counsel for Administration
to take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within the ten working days, the Privacy
Officer shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or, in cases in which a copy cannot be
provided (for example, erasure of information from a record maintained
only in magnetically-recorded computer files), a statement as to the
means by which the correction or amendment was effected; or,
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Officer's name and title or position;
(B) The date of the denial;
(C) The reasons for the denial, including citation to the
appropriate sections of the Act and this subpart; and,
(D) The procedures for appeal of the denial as set forth in Sec.
4.29, including the address of the Assistant General Counsel for
Administration.
(3) The term promptly in this section means within thirty working
days (i.e., excluding Saturdays, Sundays and legal public holidays). If
the Privacy Officer cannot make the determination within thirty working
days, the individual will be advised in writing of the reason for the
delay and of the estimated date by which the determination will be made.
(b) Whenever an individual's record is corrected or amended pursuant
to a request from that individual, the Privacy Officer shall notify all
persons and agencies to which the corrected or amended portion of the
record had been disclosed prior to its correction or amendment, if an
accounting of such disclosure required by the Act was made. The
notification shall require a recipient agency maintaining the record to
acknowledge receipt of the notification, to correct or amend the record,
and to apprise any agency or person to which it had disclosed the record
of the substance of the correction or amendment.
(c) The following criteria will be considered by the Privacy Officer
in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information to be corrected or
amended;
(3) The relevance and necessity of the information in terms of the
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended;
and,
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
[[Page 41]]
(d) The Department will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence the
individual submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Officer that:
(1) The individual has failed to establish, by a preponderance of
the evidence, the propriety of the correction or amendment in light of
the criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or amended,
or the record sought to be corrected or amended, is the subject of a
pending judicial, quasi-judicial or quasi-legislative proceeding to
which the individual is a party or participant;
(4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or,
(5) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(f) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
Sec. 4.29 Appeal of initial adverse agency determination on correction
or amendment.
(a) If a request for correction or amendment is denied initially
under Sec. 4.28, the individual may submit a written appeal within
thirty working days (i.e., excluding Saturdays, Sundays and legal public
holidays) of the date of the initial denial. If an appeal is submitted
by mail, the postmark is conclusive as to timeliness.
(b) An appeal should be addressed to the Assistant General Counsel
for Administration, U.S. Department of Commerce, Room 5875, 14th and
Constitution Avenue, NW., Washington, DC 20230. An appeal should include
the words ``PRIVACY APPEAL'' in capital letters at the top of the letter
and on the face of the envelope. An appeal not addressed and marked as
provided herein will be so marked by Department personnel when it is so
identified, and will be forwarded immediately to the Assistant General
Counsel for Administration. An appeal which is not properly addressed by
the individual will not be deemed to have been ``received'' for purposes
of measuring the time periods in this section until actual receipt by
the Assistant General Counsel for Administration. In each instance when
an appeal so forwarded is received, the Assistant General Counsel for
Administration shall notify the individual that his or her appeal was
improperly addressed and the date on which the appeal was received at
the proper address.
(c) The individual's appeal shall be signed by the individual, and
shall include a statement of the reasons why the initial denial is
believed to be in error, and the Department's control number assigned to
the request. The Privacy Officer who issued the initial denial shall
furnish to the Assistant General Counsel for Administration the record
the individual requests to be corrected or amended, and all
correspondence between the Privacy Officer and the requester. Although
the foregoing normally will comprise the entire record on appeal, the
Assistant General Counsel for Administration may seek any additional
information necessary to ensure that the final determination is fair and
equitable and, in such instances, disclose the additional information to
the individual to the greatest extent possible, and provide an
opportunity for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The Assistant General Counsel for Administration shall act upon
the appeal and issue a final determination in writing not later than
thirty working days (i.e., excluding Saturdays, Sundays and legal public
holidays) from the date on which the appeal is received, except that the
Assistant General Counsel for Administration may extend the thirty days
upon deciding that a fair and equitable review cannot
[[Page 42]]
be made within that period, but only if the individual is advised in
writing of the reason for the extension and the estimated date by which
a final determination will issue. The estimated date should not be later
than the sixtieth working day after receipt of the appeal unless unusual
circumstances, as described in Sec. 4.25(a), are met.
(f) If the appeal is determined in favor of the individual, the
final determination shall include the specific corrections or amendments
to be made and a copy thereof shall be transmitted promptly to the
individual and to the Privacy Officer who issued the initial denial.
Upon receipt of such final determination, the Privacy Officer shall
promptly take the actions set forth in Sec. 4.28(a)(2)(i) and (b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination also shall inform the
individual that:
(1) The individual has a right under the Act to file with the
Assistant General Counsel for Administration a concise statement of
reasons for disagreeing with the final determination. The statement
ordinarily should not exceed one page and the Department reserves the
right to reject an excessively lengthy statement. It should provide the
Department control number assigned to the request, indicate the date of
the final determination and be signed by the individual. The Assistant
General Counsel for Administration shall acknowledge receipt of such
statement and inform the individual of the date on which it was
received;
(2) Any such disagreement statement submitted by the individual
would be noted in the disputed record, and filed with it;
(3) The purposes and uses to which the statement would be put are
those applicable to the record in which it is noted, and that a copy of
the statement would be provided to persons and agencies to which the
record is disclosed subsequent to the date of receipt of such statement;
(4) The Department would append to any such disagreement statement a
copy of the final determination or summary thereof, which also would be
provided to persons and agencies to which the disagreement statement is
disclosed; and
(5) The individual has a right to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the Assistant General Counsel
for Administration shall employ the criteria set forth in Sec. 4.28(c)
and shall deny an appeal only on the grounds set forth in Sec. 4.28(e).
(i) If an appeal is partially granted and partially denied, the
Assistant General Counsel for Administration shall follow the
appropriate procedures of this section as to the records within the
grant and the records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (g)(3) of this
section satisfy the requirements of 5 U.S.C. 552a(e)(3).
Sec. 4.30 Disclosure of record to person other than the individual to
whom it pertains.
(a) The Department may disclose a record pertaining to an individual
to a person other than the individual to whom it pertains only in the
following instances:
(1) Upon written request by the individual, including authorization
under Sec. 4.25(f);
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (12), as
follows: \3\
---------------------------------------------------------------------------
\3\ 5 U.S.C. 552a(b)(4) has no application within the Department.
---------------------------------------------------------------------------
(i) To those officers and employees of the agency that maintains the
record
[[Page 43]]
who have a need for the record in the performance of their duties;
(ii) Required under 5 U.S.C. 552;
(iii) For a routine use as defined in 5 U.S.C. 552a(a)(7);
(iv) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13 of the U.S. Code;
(v) To a requester who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(vi) To the National Archives and Records Administration as a record
that has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States, or the designee of the Archivist, to
determine whether the record has such value;
(vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record, specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(x) To the Comptroller General, or any of his or her authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(xi) Pursuant to the order of a court of competent jurisdiction; or
(xii) To a consumer reporting agency in accordance with 31 U.S.C.
3711(e).
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by the Department
in certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the
individual to whom they pertain, upon request; and
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by the Department to the court.
(c) The Privacy Officer shall make an accounting of each disclosure
by him of any record contained in a system of records in accordance with
5 U.S.C. 552a(c)(1) and (2). Except for a disclosure made under 5 U.S.C.
552a(b)(7), the Privacy Officer shall make such accounting available to
any individual, insofar as it pertains to that individual, upon any
request submitted in accordance with Sec. 4.24. The Privacy Officer
shall make reasonable efforts to notify any individual when any record
in a system of records is disclosed to any person under compulsory legal
process, promptly upon being informed that such process has become a
matter of public record.
[66 FR 65632, Dec. 20, 2001, as amended at 67 FR 60282, Sept. 25, 2002]
Sec. 4.31 Fees.
(a) The only fee to be charged to an individual under this part is
for duplication of records at the request of the individual. Components
shall charge a fee for duplication of records under the Act in the same
way in which they charge a duplication fee under Sec. 4.11, except as
provided in this section. Accordingly, no fee shall be charged or
collected for: search, retrieval, or review of records; copying at the
initiative of the Department without a request from the individual;
transportation of records; or first-class postage.
(b) The Department shall provide an individual one copy of each
record corrected or amended pursuant to the individual's request without
charge as evidence of the correction or amendment.
(c) As required by the United States Office of Personnel Management
in its
[[Page 44]]
published regulations implementing the Act, the Department shall charge
no fee for a single copy of a personnel record covered by that agency's
Government-wide published notice of systems of records.
Sec. 4.32 Penalties.
(a) The Act provides, in pertinent part:
Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000. (5
U.S.C. 552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
Sec. 4.33 General exemptions.
(a) Individuals may not have access to records maintained by the
Department but which were provided by another agency which has
determined by regulation that such information is subject to general
exemption under 5 U.S.C. 552a(j). If such exempt records are within a
request for access, the Department will advise the individual of their
existence and of the name and address of the source agency. For any
further information concerning the record and the exemption, the
individual must contact that source agency.
(b) The general exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Individuals identified in Export Transactions--COMMERCE/ITA-1.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b),
(c)(1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and
(11), and (i). These exemptions are necessary to ensure the proper
functioning of the law enforcement activity, to protect confidential
sources of information, to fulfill promises of confidentiality, to
maintain the integrity of the law enforcement process, to avoid
premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, to prevent
interference with law enforcement proceedings, to avoid disclosure of
investigative techniques, and to avoid endangering law enforcement
personnel. Section 12(c) of the Export Administration Act of 1979, as
amended, also protects this information from disclosure.
(2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5. Pursuant
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and
(2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11), and
(i). These exemptions are necessary to ensure the proper functioning of
the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to prevent
interference with law enforcement proceedings, to avoid the disclosure
of investigative techniques, to avoid the endangering of law enforcement
personnel, to avoid premature disclosure of the knowledge of criminal
activity and the evidentiary bases of possible enforcement actions, and
to maintain the integrity of the law enforcement process.
(3) Investigative and Inspection Records--COMMERCE/DEPT-12. Pursuant
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i).
These exemptions are necessary to ensure the proper operation of the law
enforcement activity, to protect confidential sources of information, to
fulfill promises of confidentiality, to prevent interference with law
enforcement proceedings, to avoid the disclosure of investigative
techniques, to avoid the endangering of law enforcement personnel, to
avoid premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, and to maintain the
integrity of the law enforcement process.
[[Page 45]]
Sec. 4.34 Specific exemptions.
(a)(1) Certain systems of records under the Act that are maintained
by the Department may occasionally contain material subject to 5 U.S.C.
552a(k)(1), relating to national defense and foreign policy materials.
The systems of records published in the Federal Register by the
Department that are within this exemption are:
COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11,
COMMERCE/PAT-TM-4, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and COMMERCE/
DEPT-14.
(2) The Department hereby asserts a claim to exemption of such
materials wherever they might appear in such systems of records, or any
systems of records, at present or in the future. The materials would be
exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I),
and (f), because the materials are required by Executive order to be
kept secret in the interest of the national defense and foreign policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt
hereunder appear in paragraph (a) of this section. The claims for
exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11
under this paragraph are subject to the condition that the general
exemption claimed in Sec. 4.33(b)(3) is held to be invalid.
(2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Individuals identified in Export Administration compliance
proceedings or investigations--COMMERCE/ITA-1, but only on condition
that the general exemption claimed in Sec. 4.33(b)(1) is held to be
invalid;
(B) Individuals involved in export transactions--COMMERCE/ITA-2;
(C) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-11, but only
on condition that the general exemption claimed in Sec. 4.33(b)(2) is
held to be invalid;
(D) Investigative and Inspection Records--COMMERCE/DEPT-12, but only
on condition that the general exemption claimed in Sec. 4.33(b)(3) is
held to be invalid;
(E) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13;
(F) Litigation, Claims and Administrative Proceeding Records--
COMMERCE/DEPT-14; and
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
investigatory process; to ensure the proper functioning and integrity of
law enforcement activities; to prevent disclosure of investigative
techniques; to maintain the ability to obtain necessary information; to
fulfill commitments made to sources to protect their identities and the
confidentiality of information; and to avoid endangering these sources
and law enforcement personnel. Special note is taken that the proviso
clause in this exemption imports due process and procedural protections
for the individual. The existence and general character of the
information exempted shall be made known to the individual to whom it
pertains.
(3)(i) Exempt under 5 U.S.C. 552a(k) (4). The systems of records
exempt, the sections of the Act from which exempted, and the reasons
therefor are as follows:
(A) Agriculture Census Records for 1974 and 1978--COMMERCE/CENSUS-1;
(B) Individual and Household Statistical Surveys and Special Census
Studies Records--COMMERCE/CENSUS-3;
(C) Minority-Owned Business Enterprises Survey Records--COMMERCE/
CENSUS-4;
(D) Population and Housing Census Records of the 1960 and Subsequent
Censuses--COMMERCE/ CENSUS-5;
[[Page 46]]
(E) Population Census Personal Service Records for 1900 and All
Subsequent Decennial Censuses--COMMERCE/CENSUS-6; and
(F) Special Censuses of Population Conducted for State and Local
Government--COMMERCE/CENSUS-7.
(G) Statistical Administrative Records System--COMMERCE/CENSUS-8.
(ii) The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G) (H), and (I), and (f). The reasons for asserting the
exemption are to comply with the prescription of Title 13 of the United
States Code, especially sections 8 and 9 relating to prohibitions
against disclosure, and to avoid needless consideration of these records
whose sole statistical use comports fully with a basic purpose of the
Act, namely, that no adverse determinations are made from these records
as to any identifiable individual.
(4)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
(B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
(C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
(D) USMMA Non-Appropriated fund Employees--COMMERCE/MA-19;
(E) Applicants for the NOAA Corps--COMMERCE/NOAA-4;
(F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
7;
(G) Conflict of Interest Records, Appointed Officials--COMMERCE/
DEPT-3;
(H) Investigative and Inspection Records--COMMERCE/DEPT-12, but only
on condition that the general exemption claimed in Sec. 4.33(b)(3) is
held to be invalid;
(I) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13; and
(J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14.
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting the
exemption are to maintain the ability to obtain candid and necessary
information, to fulfill commitments made to sources to protect the
confidentiality of information, to avoid endangering these sources and,
ultimately, to facilitate proper selection or continuance of the best
applicants or persons for a given position or contract. Special note is
made of the limitation on the extent to which this exemption may be
asserted. The existence and general character of the information
exempted will be made known to the individual to whom it pertains.
(c) At the present time, the Department claims no exemption under 5
U.S.C. 552a(k) (3), (6) and (7).
Sec. Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the Freedom of
Information Act and Privacy Act, and Requests for Correction or
Amendment Under the Privacy Act
Each address listed below is the respective component's mailing
address for receipt and processing of requests for records under the
Freedom of Information Act and Privacy Act, for requests for correction
or amendment under the Privacy Act and, unless otherwise noted, its
public inspection facility for records available to the public under the
Freedom of Information Act. Requests should be addressed to the
component the requester knows or has reason to believe has possession
of, control over, or primary concern with the records sought. Otherwise,
requests should be addressed to the Central Reference and Records
Inspection Facility. The telephone number for each component is included
after its address. Public inspection facilities are open to the public
Monday through Friday (excluding Saturdays, Sundays, and legal public
holidays) between 9 a.m. and 4 p.m. local time of the facility at issue.
Certain public inspection facility records of components are also
available electronically through the Department's ``FOIA Home Page''
link found at the Department's World Wide Web site (http://
www.doc.gov)), as described in Sec. 4.2(b). The Departmental Freedom of
Information Officer is authorized to revise this appendix to reflect
changes in the information contained in it. Any such revisions shall be
posted at the Department's ``FOIA Home Page'' link
[[Page 47]]
found at the Department's World Wide Web site (http://www.doc.gov).
(1) Department of Commerce Freedom of Information Central Reference
and Records Inspection Facility, U.S. Department of Commerce, Room 6022,
14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-4115.
This facility serves the Office of the Secretary, all other components
of the Department not identified below, and those components identified
below that do not have separate public inspection facilities.
(2) Bureau of the Census, Policy Office, U.S. Department of
Commerce, Federal Building 3, Room 2430, Suitland, Maryland 20233; (301)
457-2520. This agency maintains a separate public inspection facility in
Room 2455, Federal Building 3, Suitland, Maryland 20233.
(3) Bureau of Economic Analysis/Economics and Statistics
Administration, Office of the Under Secretary for Economic Affairs,
Department of Commerce, Room 4836, 14th and Constitution Avenue, NW,
Washington, DC 20230; (202) 482-3308. This component does not maintain a
separate public inspection facility.
(4) Bureau of Export Administration, Office of Administration, U.S.
Department of Commerce, Room 6883, 14th and Constitution Avenue, NW,
Washington, DC 20230; (202) 482-0500. This component does not maintain a
separate public inspection facility.
(5) Economic Development Administration, Office of the Chief
Counsel, U.S. Department of Commerce, Room 7005, 14th and Constitution
Avenue, NW, Washington, DC 20230; (202) 482-4687. Regional EDA offices
(none of the following regional EDA offices maintains a separate public
inspection facility):
(i) Philadelphia Regional Office, EDA, U.S. Department of Commerce,
Curtis Center, Suite 140 South, Independence Square West, Philadelphia,
Pennsylvania 19106; (215) 597-7896.
(ii) Atlanta Regional Office, EDA, U.S. Department of Commerce, 401
West Peachtree Street, NW, Suite 1820, Atlanta, GA 30308; (404) 730-
3006.
(iii) Denver Regional Office, EDA, U.S. Department of Commerce, Room
670, 1244 Speer Boulevard, Denver, Colorado 80204; (303) 844-4716.
(iv) Chicago Regional Office, EDA, U.S. Department of Commerce, 111
North Canal Street, Suite 855, Chicago, IL 60606; (312) 353-8580.
(v) Seattle Regional Office, EDA, U.S. Department of Commerce,
Jackson Federal Building, Room 1856, 915 Second Avenue, Seattle WA
98174; (206) 220-7701.
(vi) Austin Regional Office, EDA, U.S. Department of Commerce, 327
Congress Avenue, Suite 200, Austin, Texas 78701; (512) 381-8169.
(6) International Trade Administration, Office of Organization and
Management Support, U.S. Department of Commerce, Room 4001, 14th and
Constitution Avenue, NW, Washington, DC 20230; (202) 482-3032.
(7) Minority Business Development Agency, Data Resources Division,
U.S. Department of Commerce, Room 5084, 14th and Constitution Avenue,
NW, Washington, DC 20230; (202) 482-2025. This agency does not maintain
a separate public inspection facility.
(8) National Institute of Standards and Technology, Management and
Organization Division, Administration Building, Room A525, 100 Bureau
Drive, Gaithersburg, Maryland 20899; (301) 975-4054. This agency
maintains a separate public inspection facility in Room E-106,
Administration Building, Gaithersburg, Maryland.
(9) National Oceanic and Atmospheric Administration, Public
Reference Facility (OFAx2) 1315 East West Highway (SSMC3), Room 10730,
Silver Spring, Maryland 20910; (301) 713-3540.
(10) National Technical Information Service, Office of
Administration, 5285 Port Royal Road, Springfield, Virginia 22161; (703)
605-6449. This agency does not maintain a separate public inspection
facility.
(11) National Telecommunications and Information Administration,
Office of the Chief Counsel, U.S. Department of Commerce, Room 4713,
14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-1816.
This component does not maintain a separate public inspection facility.
(12) Office of Inspector General, Counsel to the Inspector General,
U.S. Department of Commerce, Room 7892, 14th and Constitution Avenue,
NW, Washington, DC 20230; (202) 482-5992. This component does not
maintain a separate public inspection facility.
(13) Technology Administration, Office of the Under Secretary, U.S.
Department of Commerce, Room 4835, 14th and Constitution Avenue, NW,
Washington, DC 20230; (202) 482-1984. This component does not maintain a
separate public inspection facility.
Sec. Appendix B to Part 4--Officials Authorized To Deny Requests for
Records Under the Freedom of Information Act, and Requests for Records
and Requests for Correction or Amendment Under the Privacy Act
The officials of the Department listed below and their superiors
have authority, with respect to the records for which each is
responsible, to deny requests for records under the FOIA, \1\ and
requests for records and requests for correction or amendment under the
PA. In addition, the Departmental
[[Page 48]]
Freedom of Information Officer and the Freedom of Information Officer
for the Office of the Secretary have the foregoing FOIA and PA denial
authority for all records of the Department, and the Departmental
Freedom of Information officer is authorized to assign that authority,
on a case-by-case basis only, to any of the officials listed below, if
the records responsive to a request include records for which more than
one official listed below is responsible. The Departmental Freedom of
Information Officer is authorized to revise this appendix to reflect
changes in designation of denial officials. Any such revisions shall be
posted at the Department's ``FOIA Home Page'' link found at the
Department's World Wide Web site (http://www.doc.gov).
---------------------------------------------------------------------------
\1\ The foregoing officials have sole authority under Sec. 4.7(b)
to deny requests for records in any respect, including, for example,
denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------
Office of the Secretary
Office of the Secretary: Executive Secretary; Freedom of Information
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press Secretary;
Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs;
Deputy Assistant Secretary for Legislative and Intergovernmental Affairs
Office of the Inspector General: FOIA Officer; Senior Associate Counsel
to the Inspector General.
Office of the General Counsel: Deputy General Counsel; Assistant General
Counsel for Administration
Office of Executive Support: Director
Assistant Secretary for Administration
Office of Civil Rights: Director
Office of Budget: Director
Office of Management and Organization: Director
Office of Chief Information Officer: Director
Office of Executive Budgeting and Assistance Management: Director
Office of Executive Assistance Management: Director; Grants Officer
Departmental Freedom of Information Officer.
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director.
Office of Administrative Services: Director
Office of Security: Director, Deputy Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director
Bureau of Export Administration
Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Strategic Trade and Foreign Policy Controls
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance
Economics and Statistics Administration
Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Freedom of Information Act Officer
Economic Development Administration
Freedom of Information Officer
International Trade Administration
Under Secretary for International Trade
Deputy Under Secretary for International Trade
Counselor to the Department
Director, Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
Administration
Chief Financial Officer and Director of Administration
Director, Office of Organization and Management Support
Director, Office of Human Resources Management
Director, Office of Information Resources Management
ITA Freedom of Information Officer
Import Administration
Assistant Secretary for Import Administration
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement I
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement II
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement III
Director for Policy and Analysis
Director, Office of Policy
Director, Office of Accounting
Director, Central Records Unit
Director, Foreign Trade Zones Staff
Director, Statutory Import Programs Staff
Director, Office of Antidumping Countervailing Duty Enforcement I
[[Page 49]]
Director, Office of Antidumping Countervailing Duty Enforcement II
Director, Office of Antidumping Countervailing Duty Enforcement III
Director, Office of Antidumping Countervailing Duty Enforcement IV
Director, Office of Antidumping Countervailing Duty Enforcement V
Director, Office of Antidumping Countervailing Duty Enforcement VI
Director, Office of Antidumping Countervailing Duty Enforcement VII
Director, Office of Antidumping Countervailing Duty Enforcement VIII
Director, Office of Antidumping Countervailing Duty Enforcement IX
Market Access and Compliance
Assistant Secretary for Market Access and Compliance
Deputy Assistant Secretary for Agreements Compliance
Deputy Assistant Secretary for the Middle East and North Africa
Deputy Assistant Secretary for Europe
Deputy Assistant Secretary for the Western Hemisphere
Deputy Assistant Secretary for Asia and the Pacific
Deputy Assistant Secretary for Africa
Director, Office of Policy Coordination
Director, Office of Multilateral Affairs
Director, Trade Compliance Center
Director, Office of the Middle East and North Africa
Director, Office of European Union and Regional Affairs
Director, Office of Eastern Europe, Russia and Independent States
Director, Office of Latin America and the Caribbean
Director, Office of NAFTA and Inter-American Affairs
Director, Office of China Economic Area
Director, Office of the Pacific Basin
Director, Office of South Asia and Oceania
Director, Office of Japan
Director, Office of Africa
Trade Development
Assistant Secretary for Trade Development
Deputy Assistant Secretary for Transportation and Technology Industries
Deputy Assistant Secretary for Textiles, Apparel and Consumer Goods
Industries
Deputy Assistant Secretary for Service Industries and Finance
Deputy Assistant Secretary for Basic Industries
Deputy Assistant Secretary for Information Technology Industries
Deputy Assistant Secretary for Environmental Technologies Industries
Deputy Assistant Secretary for Tourism Industries
Director, Office of Export Promotion Coordination
Director, Trade Information Center
Director, Office of Trade and Economic Analysis
Director, Advocacy Center
Director, Office of Planning, Coordination and Resource Management
Director, Office of Aerospace
Director, Office of Automotive Affairs
Director, Office of Microelectronics, Medical Equipment and
Instrumentation
Director, Office of Textiles and Apparel
Director, Office of Consumer Goods
Director, Office of Environmental Technologies
Director, Office of Export Trading Company Affairs
Director, Office of Finance
Director, Office of Service Industries
Director, Office of Metals, Materials and Chemicals
Director, Office of Energy, Infrastructure and Machinery
Director, Office of Electronic Commerce
Director, Office of Information Technologies
Director, Office of Telecommunications Technologies
U.S. and Foreign Commercial Service
Assistant Secretary and Director General
Deputy Director General
Deputy Assistant Secretary for International Operations
Deputy Assistant Secretary for Export Promotion Services
Deputy Assistant Secretary for Domestic Operations
Director, Office of Information Systems
Director, Office of Planning
Director, Office of Foreign Service Human Resources
Director for Europe
Director for Western Hemisphere
Director for East Asia and the Pacific
Director, Multilateral Development Bank Operations
Director, Office of Public/Private Initiatives
Director, Office of Export Information and Marketing Services
Director, Office of Operations
Minority Business Development Administration
Freedom of Information Officer
National Oceanic and Atmospheric Administration
Under Secretary
Assistant Secretary
Director, Office of Public and Constituent Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Assistant Administrator for Ocean Services and Coastal Zone Management
Assistant Administrator for Fisheries
[[Page 50]]
Assistant Administrator for Weather Services
Assistant Administrator for Satellite and Information Services
Assistant Administrator for Oceanic and Atmospheric Research
Office of Finance and Administration: Chief Financial Officer/Chief
Administrative Officer
Director, Acquisition and Grants Office
Director, Systems Acquisition Office
Director, Human Resources Management Office
Director, Office of Finance
Director, Budget Office
Director, Facilities Office
Director, Information Systems Management Office
Director, Eastern Administrative Support Center
Director, Central Administrative Support Center
Director, Mountain Administrative Support Center
Director, Western Administrative Support Center
Freedom of Information Officer
National Telecommunications and Information Administration
Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel
Technology Administration
Under Secretary for Technology
Deputy Under Secretary for Technology
Assistant Secretary for Technology Policy
Deputy Assistant Secretary for Technology Policy
Chief Counsel
Deputy Chief Counsel
Senior Counsel for Internet Technology
National Institute of Standards and Technology: Director for
Administration and Chief Financial Officer; Chief, Management and
Organization Division; NIST Counsel.
National Technical Information Service: Director; Deputy Director; Chief
Financial Officer/Associate Director for Finance and Administration.
[66 FR 65632, Dec. 20, 2001, as amended at 70 FR 47725, Aug. 15, 2005;
70 FR 75730, Dec. 21, 2005; 72 FR 36595, July 5, 2007; 76 FR 39769, July
7, 2011]
Sec. Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department and Applicability
of This Part Thereto
------------------------------------------------------------------------
Category of records Other Federal Agency
------------------------------------------------------------------------
Federal Personnel Records........ Office of Personnel Management. \1\
Federal Employee Compensation Act Department of Labor. \2\
Program Program.
Equal Employment Opportunity Equal Employment Opportunity
Appeal Complaints. Commission. \3\
Formal Complaints/Appeals of Merit Systems Protection Board. \4\
Adverse Personnel Actions.
------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Office of Personnel
Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records
covered by notices of systems of records published by the U.S.
Department of Labor for all agencies. The regulations of that
Department attach at the point of any denial for access or for
correction or amendment.
\3\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Equal Employment
Opportunity Commission for all agencies. The regulations of the
Commission alone apply.
\4\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Merit Systems
Protection Board for all agencies. The regulations of the Board alone
apply.
PART 4a_CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY OF
NATIONAL SECURITY INFORMATION
Sec.
4a.1 General.
4a.2 Deputy Assistant Secretary for Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
4a.6 General.
4a.7 Mandatory review for declassification.
4a.8 Access to classified information by individuals outside the
Government.
Authority: E.O. 12958; 47 FR 14874, April 6, 1982; 47 FR 15557,
April 12, 1982.
Source: 66 FR 65650, Dec. 20, 2001, unless otherwise noted.
Sec. 4a.1 General.
Executive Order 12958 provides the only basis for classifying
information within the Department of Commerce (Department), except as
provided in the Atomic Energy Act of 1954, as amended. The Department's
policy is to make
[[Page 51]]
information concerning its activities available to the public,
consistent with the need to protect the national defense and foreign
relations of the United States. Accordingly, security classification
shall be applied only to protect the national security.
Sec. 4a.2 Deputy Assistant Secretary for Security.
The Deputy Assistant Secretary for Security (DAS) is responsible for
implementing E.O. 12958 and this part.
Sec. 4a.3 Classification levels.
Information may be classified as national security information by a
designated original classifier of the Department if it is determined
that the information concerns one or more of the categories described in
Sec. 1.5 of E.O. 12958. The levels established by E.O. 12958 (Top
Secret, Secret, and Confidential) are the only terms that may be applied
to national security information. Except as provided by statute, no
other terms shall be used within the Department for the three
classification levels.
Sec. 4a.4 Classification authority.
Authority to originally classify information as Secret or
Confidential may be exercised only by the Secretary of Commerce and by
officials to whom such authority is specifically delegated. No official
of the Department is authorized to originally classify information as
Top Secret.
Sec. 4a.5 Duration of classification.
(a) Information shall remain classified no longer than ten years
from the date of its original classification, except as provided in
Sec. 1.6(d) of E.O. 12958. Under E.O. 12958, information may be
exempted from declassification within ten years if the unauthorized
disclosure of such information could reasonably be expected to cause
damage to the national security for more than ten years and meets one of
the eight criteria listed in Sec. 1.6 (d).
(b) Department of Commerce originally classified information marked
for an indefinite duration of classification under predecessor orders to
E.O. 12958 shall be declassified after twenty years. Classified
information contained in archive records determined to have permanent
historical value under Title 44 of the United States Code shall be
automatically declassified no longer than 25 years from the date of its
original classification, except as provided in Sec. 3.4(d) of E.O.
12958.
Sec. 4a.6 General.
National security information over which the Department exercises
final classification jurisdiction shall be declassified or downgraded as
soon as national security considerations permit. If information is
declassified, it may continue to be exempt from public disclosure by the
Freedom of Information Act (5 U.S.C. 552) or other applicable law.
Sec. 4a.7 Mandatory review for declassification.
(a) Requests. Classified information under the jurisdiction of the
Department is subject to review for declassification upon receipt of a
written request that describes the information with sufficient
specificity to locate it with a reasonable amount of effort. Requests
must be submitted to the Deputy Assistant Secretary for Security, U.S.
Department of Commerce, Room 1069, 14th and Constitution Avenue, NW.,
Washington, DC 20230.
(b) Exemptions. The following are exempt from mandatory review for
declassification:
(1) Information that has been reviewed for declassification within
the past two years;
(2) Information that is the subject of pending litigation;
(3) Information originated by the incumbent President, the incumbent
President's White House Staff, committees, commissions, or boards
appointed by the incumbent President, or other entities within the
Executive Office of the President that solely advise and assist the
incumbent President; and
(4) Information specifically exempt from such review by law.
(c) Processing requirements. (1) The DAS shall acknowledge receipt
of the request directly to the requester. If a request does not
adequately describe the information sought in accordance with paragraph
(a) of this section, the
[[Page 52]]
requester shall be notified that unless additional information is
provided, no further action will be taken. The request shall be
forwarded to the component that originated the information or that has
primary interest in the subject matter. The component assigned action
shall review the information in accordance with Sec. 4a.7(c)(2) through
(4) within twenty working days.
(2) The component assigned action shall determine whether, under the
declassification provisions of the U.S. Department of Commerce Security
Manual, the entire document or portions thereof may be declassified.
Declassification of the information shall be accomplished by a
designated declassification authority. Upon declassification the
information shall be remarked. If the information is not partially or
entirely declassified, the reviewing official shall provide the reasons
for denial by citing the applicable provisions of E.O. 12958. If the
classification is a derivative decision based on classified source
material of another Federal agency, the component shall provide the
information to the originator for review.
(3) If information is declassified, the component shall also
determine whether it is releasable under the Freedom of Information Act.
If the information is not releasable, the component shall advise the DAS
that the information has been declassified but that it is exempt from
disclosure, citing the appropriate exemption of the Freedom of
Information Act.
(4) If the request for declassification is denied in whole or in
part, the requester shall be notified of the right to appeal the
determination within sixty calendar days and of the procedures for such
an appeal. If declassified information remains exempt from disclosure
under the Freedom of Information Act, the requester shall be advised of
the appellate procedures under that law.
(d) Fees. If the request requires services for which fees are
chargeable, the component assigned action shall calculate the
anticipated fees to be charged, and may be required to ascertain the
requester's willingness to pay the allowable charges as a precondition
to taking further action on the request, in accordance with Sec. 4.11
of the Department of Commerce Freedom of Information Act rules and Sec.
4.31 of the Department's Privacy Act rules.
(e) Right of appeal. (1) A requester may appeal to the DAS when
information requested under this section is not completely declassified
and released after expiration of the applicable time limits. Within
thirty working days (i.e., excluding Saturdays, Sundays, and legal
public holidays) of receipt of a written appeal:
(i) The DAS shall determine whether continued classification of the
requested information is required in whole or in part;
(ii) If information is declassified, determine whether it is
releasable under the Freedom of Information Act; and
(iii) Notify the requester of his or her determination, making
available any information determined to be releasable. If continued
classification is required under the provisions of the Department of
Commerce National Security Manual, the DAS shall notify the requester of
his or her determination, including the reasons for denial based on
applicable provisions of E.O. 12958, and of the right of final appeal to
the Interagency Security Classification Appeals Panel.
(2) During the declassification review of information under appeal
the DAS may overrule previous determinations in whole or in part if
continued protection in the interest of national security is no longer
required. If the DAS determines that the information no longer requires
classification, it shall be declassified and, unless it is otherwise
exempt from disclosure under the Freedom of Information Act, released to
the requester. The DAS shall advise the original reviewing component of
his or her decision.
Sec. 4a.8 Access to classified information by individuals outside the
Government.
(a) Industrial, Educational, and Commercial Entities. Certain
bidders, contractors, grantees, educational, scientific, or industrial
organizations may receive classified information under the procedures
prescribed by the National Industrial Security Program Operating Manual.
[[Page 53]]
(b) Access by historical researchers and former Presidential
appointees. An individual engaged in historical research projects or who
has previously occupied a policy-making position to which he or she was
appointed by the President may be authorized access to classified
information for a limited period, provided that the head of the
component with jurisdiction over the information:
(1) Determines in writing that:
(i) Access is consistent with national security;
(ii) The individual has a compelling need for access; and
(iii) The Department's best interest is served by providing access;
(2) Obtains in writing from the individual:
(i) Consent to a review by the Department of any resultant notes and
manuscripts for the purpose of determining that no classified
information is contained in them; and
(ii) Agreement to safeguard classified information in accordance
with applicable requirements; and
(iii) A detailed description of the individual's research;
(3) Ensures that custody of classified information is maintained at
a Department facility;
(4) Limits access granted to former Presidential appointees to items
that the individual originated, reviewed, signed, or received while
serving as a Presidential appointee; and
(5) Receives from the DAS:
(i) A determination that the individual is trustworthy; and
(ii) Approval to grant access to the individual.
(c) An individual seeking access should describe the information
with sufficient specificity to locate and compile it with a reasonable
amount of effort. If the access requested by a historical researcher or
former Presidential appointee requires services for which fees are
chargeable, the responsible component shall notify the individual in
advance.
(d) This section applies only to classified information originated
by the Department, or to information in the sole custody of the
Department. Otherwise, the individual shall be referred to the
classifying agency.
PART 5_OPERATION OF VENDING STANDS--Table of Contents
Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.
Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.
Source: 28 FR 7772, July 31, 1963, unless otherwise noted.
Sec. 5.1 Purpose.
This part prescribes regulations to assure the granting of
preference to blind persons licensed under the provisions of the
Randolph-Sheppard Vending Stand Act (49 Stat. 1559, as amended by the
act of August 3, 1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of
vending stands (which term as used in this order includes vending
machines).
Sec. 5.2 Policy.
(a) The Department adopts the Federal policy announced in the
Randolph-Sheppard Vending Stand Act, as amended, to provide blind
persons with remunerative employment to enlarge the economic
opportunities of the blind and to stimulate the blind to greater efforts
in striving to make themselves self-supporting.
(b) It shall be the policy of the Department to authorize blind
persons licensed under the provisions of the Randolph-Sheppard Vending
Stand Act, as amended to operate vending stands without any charge for
space or necessary utilities on properties owned and occupied by the
Department or on which the Department controls maintenance, operation,
and protection.
(c) The Department will cooperate with the Department of Education
and State licensing agencies in making surveys to determine whether and
where vending stands may be properly and profitably operated by licensed
blind persons.
(d) The application of a State licensing agency for a permit may be
denied or revoked if it is determined that the
[[Page 54]]
interests of the United States would be adversely affected or the
Department would be unduly inconvenienced by the issuance of a permit or
its continuance.
(e) Disagreements concerning the denial, revocation, or modification
of a permit may be appealed by the State licensing agency as set forth
in Sec. 5.6.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.3 Assignment of functions and authorities.
(a) The Director, Office of Administrative Services, shall carry out
the Department's responsibility to provide, in accordance with
applicable law and regulation, the maximum opportunity for qualified
blind persons to operate vending stands.
(b) Subject to instructions issued by the Director, Office of
Administrative Services, the head of each primary organization unit
shall be responsible for implementing this program within his area.
(c) The Director, Office of Administrative Services for the primary
organization units located in the main Commerce building and the head of
each other primary organization unit will make determinations with
respect to the terms of permits including the location and operation of
vending stands and machines in their respective areas.
(d) Unresolved differences and significant violations of the terms
of permits shall be reported to the State licensing agency. Where no
corrective action is forthcoming, the matter shall be referred to the
Office of Vocational Rehabilitation, Department of Education for
consideration prior to further action.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.4 Permits.
(a) No permit, lease, or other arrangement for the operation of a
vending stand on property under control of the Department shall be
entered into or renewed without first consulting the State licensing
agency or equivalent authority.
(b) The permit shall be conditioned upon the vending stand meeting
specified standards, including standards relating to appearance, safety,
sanitation, maintenance, and efficiency of operation. Due regard shall
be given to laws and regulations for the public welfare which are
applicable, or would be applicable, if the property involved was not
owned or controlled by the Federal Government.
(c) The permit shall specify the types of articles specified in
section 2(a)(4) of the Act as amended (newspapers, periodicals,
confections, tobacco products, articles dispensed automatically or in
containers or wrappings in which they are placed before delivery to the
vending stand). Such other related articles as the State licensing
agency asks to be included shall be permitted to be sold, unless such
factors as inadequacy of available facilities, safety, health, public
welfare, or legal requirements demand otherwise.
(d) The permit shall contain a provision that alterations made by
other than the United States shall be approved by and conducted under
the supervision of an appropriate official of the Department or the
primary organization unit concerned.
(e) The permit may contain other reasonable conditions necessary for
the protection of the Government and prospective patrons of the stand.
(f) The permit shall describe the location of the stand proper and
the location of any vending machines which are operated in conjunction
with it.
Sec. 5.5 Vending machines.
(a) The income from any vending machines which are located within
reasonable proximity to and are in direct competition with a vending
stand for which a permit has been issued under these regulations shall
be assigned to the operator of such stand.
(b) If a vending machine vends articles of a type authorized by the
permit and is so located that it attracts customers who would otherwise
patronize the vending stand, such machine shall be deemed to be in
reasonable proximity to and direct competition with the stand.
Sec. 5.6 Appeals.
(a) In any instance where the Department of Commerce official as
provided
[[Page 55]]
in Sec. 5.3(c) and the State licensing agency fail to reach agreement
concerning the granting, revocation, or modification of a permit, the
location, method of operation, assignment of proceeds, or other terms of
a permit (including articles which may be sold), the State licensing
agency shall be notified in writing by the Commerce official concerned
that it has the right to appeal such disagreements, within 30 days of
the notice, to the Assistant Secretary for Administration for
investigation and final decision.
(b) Upon receipt of a timely appeal the Assistant Secretary for
Administration will cause a full investigation to be made. The State
licensing agency shall be given an opportunity to present information
pertinent to the facts and circumstances of the case. The complete
investigation report including the recommendations of the investigating
officer shall be submitted to the Assistant Secretary for Administration
within 60 days from the date of the appeal.
(c) The Assistant Secretary for Administration will render a final
decision on the appeal within 90 days of the date of appeal.
(d) The State licensing agency will be informed of the final
decision on its appeal. Copies of the decision will be forwarded to the
Department of Commerce official concerned and the Department of
Education.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.7 Reports.
No later than fifteen days following the end of each fiscal year the
responsible officials set forth in Sec. 5.3(c) shall forward to the
Director, Office of Administrative Services a report on activities under
this order. The report shall include:
(a) The number of applications, including requests for installations
initiated by the Department, for vending stands received from State
licensing agencies;
(b) The number of such requests accepted or approved;
(c) The number denied, on which no appeal was made and the number
denied on which an appeal was made; and
(d) The number and status of any requests still pending.
Sec. 5.8 Approval of regulations.
The provisions of this part have been approved by the Director,
Bureau of the Budget, pursuant to Executive Order 10604, of April 22,
1955.
PART 6_CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS--Table of Contents
Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Limitation on First Adjustments.
6.4 Adjustments to penalties.
6.5 Effective date of adjustments.
6.6 Subsequent adjustments.
Authority: Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28
U.S.C. 2461 note.
Source: 61 FR 55093, Oct. 24, 1996, unless otherwise noted.
Sec. 6.1 Definitions.
As used in this part:
(a) Inflation Adjustment Act means the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410, October 5, 1990, 104
Stat. 890, 28 U.S.C. 2461 note).
(b) Improvement Act means the Debt Collection Improvement Act of
1996 (Public Law 104-134, April 26, 1996).
(c) Amended Section Four means section 4 of the Inflation Adjustment
Act, as amended by the Improvement Act.
(d) Section Five means section 5 of the Inflation Adjustment Act.
(e) Department means the Department of Commerce.
(f) Secretary means the Secretary of the Department of Commerce.
(g) First Adjustments means the inflation adjustments made by Sec.
6.4 of this part which, as provided in Sec. 6.5 of this part, are
effective on October 23, 1996.
Sec. 6.2 Purpose and scope.
The purpose of this part is to make the inflation adjustment,
described in Section Five and required by Amended Section Four, of each
minimum and maximum civil monetary penalty provided by law within the
jurisdiction of the Department.
[[Page 56]]
Sec. 6.3 Limitation on First Adjustments.
Each of the First Adjustments may not exceed ten percent (10%) of
the respective penalty being adjusted.
Sec. 6.4 Adjustments to penalties.
The civil monetary penalties provided by law within the jurisdiction
of the respective agencies or bureaus of the Department, as set forth
below in this section, are hereby adjusted in accordance with the
inflation adjustment procedures prescribed in Section 5, Pub. L. 101-
410, from the amounts of such penalties in effect prior to December 7,
2012, to the amounts of such penalties, as thus adjusted, except for the
penalties that are being adjusted for the first time, stated in
paragraphs, (a)(1), which became effective on October 21, 1986; (a)(2),
which became effective on March 2, 1863; (b)(5), which became effective
on December 18, 2006; and (f)(1) and (f)(2), which became effective on
December 18, 2010.
(a) Department of Commerce. (1) 31 U.S.C. 3802(a)(1)(D), Program
Fraud Civil Remedies Act of 1986, from $5,000 to $5,500.
(2) 31 U.S.C. 3729(a)(1)(G), False Claims Act; minimum from $5,000
to $5,500; maximum from $10,000 to $11,000.
(b) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1),
Fastener Quality Act--Violation, from $32,500 to $32,500.
(2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention
Implementation Act--Inspection Violation, from $25,000 to $25,000.
(3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention
Implementation Act--Record Keeping Violation, from $5,000 to $5,000.
(4) 50 U.S.C. 1705(a), International Emergency Economic Powers Act
(2007)--Violation, from $250,000 to $250,000.
(5) 22 U.S.C. 8142(a), United States Additional Protocol
Implementation Act (2006)-- Violation, from $25,000 to $27,500.
(c) Bureau of the Census. (1) 13 U.S.C. 304, Collection of Foreign
Trade Statistics--Delinquency on Delayed Filing of Export Documentation;
maximum penalty for each day's delinquency, from $1,000 to $1,000;
maximum per violation, from $10,000 to $10,000.
(2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics--
Violations, from $10,000 to $10,000.
(d) Economics and Statistics Administration. 22 U.S.C. 3105(a),
International Investment and Trade in Services Act--Failure to Furnish
Information; minimum, from $2,500 to $2,500; maximum, from $32,500 to
$32,500.
(e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign
Trade Zone--Violation, from $1,100 to $1,100.
(2) 19 U.S.C. 1677f(f)(4), U.S.-Canada FTA Protective Order--
Violation, from $130,000 to $130,000.
(f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C.
60123(a)(3), Land Remote Sensing Policy Act of 2010; new penalty
$10,000.
(2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010, new
penalty $10,000.
(3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007),
from $200,000 to $200,000.
(4) 16 U.S.C. 783, Sponge Act (1914), from $650 to $650.
(5) 16 U.S.C. 957, Tuna Conventions Act of 1950 (1962);
(i) Violation/Subsection (a), from $32,500 to $32,500.
(ii) Subsequent Violation/Subsection (a), from $70,000 to $70,000.
(iii) Violation/Subsection (b), from $1,100 to $1,100.
(iv) Subsequent Violation/Subsection (b), from $6,500 to $6,500.
(v) Violation/Subsection (c), from $140,000 to $140,000.
(6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 (1995),
from $140,000 to $140,000.
(7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984;
(i) Violation/Subsections (a)(1)-(3), from $32,500 to $32,500.
(ii) Subsequent Violation/Subsections (a)(1)-(3), from $65,000 to
$65,000.
(iii) Violation/Subsections (a)(4)-(5), from $6,500 to $6,500.
(iv) Subsequent Violation/Subsections (a)(4)-(5), from $6,500 to
$6,500.
(v) Violation/Subsection (a)(6), from $140,000 to $140,000.
(8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, from $350,000
to $350,000.
[[Page 57]]
(9) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983, from $11,000
to $11,000.
(10) 16 U.S.C. 1375(a) (1), Marine Mammal Protection Act of 1972
(1981), from $11,000 to $11,000.
(11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act
(1990), from $130,000 to $130,000.
(12) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992),
from $140,000 to $140,000.
(13) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973;
(i) Knowing Violation of Section 1538 (1988), from $32,500 to
$32,500.
(ii) Other Knowing Violation (1988), from $13,200 to $13,200.
(iii) Otherwise Violation (1978), from $650 to $650.
(14) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and
Management Act (1990), from $140,000 to $140,000.
(15) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources
Convention Act of 1984;
(i) Violation, from $6,500 to $6,500.
(ii) Knowing Violation, from $11,000 to $11,000.
(16) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990;
(i) Violation, from $6,500 to $6,500.
(ii) Knowing Violation, from $11,000 to $11,000.
(17) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981;
(i) Sale and Purchase Violation, from $11,000 to $11,000.
(ii) Marking Violation, from $275 to $275.
(iii) False Labeling Violation, from $11,000 to $11,000.
(iv) Other than Marking Violation, from $11,000 to $11,000.
(18) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 1982
(1990), from $140,000 to $140,000.
(19) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990),
from $140,000 to $140,000.
(20) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of
1986; minimum from $500 to $500; maximum from $6,500 to $6,500.
(21) 16 U.S.C. 5010(a)(1), North Pacific Anadromous Stocks Act of
1992, from $130,000 to $130,000.
(22) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative
Management Act (1993), from $140,000 to $140,000.
(23) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation Act
(1990), from $140,000 to $140,000.
(24) 16 U.S.C. 5507(a)(1), High Seas Fishing Compliance Act of 1995,
from $130,000 to $130,000.
(25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act
of 1995, from $140,000 to $140,000.
(26) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries
Convention Implementation Act (2007), from $140,000 to $140,000.
(27) 16 U.S.C. 7009(c), Pacific Whiting Act of 2006 (2007); from
$140,000 to $140,000.
(28) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971);
(i) Violation, from $11,000 to $11,000.
(ii) Subsequent Violation, from $32,500 to $32,500.
(29) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980), from $32,500 to $32,500.
(30) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of
1980, from $32,500 to $32,500.
[77 FR 72916, Dec. 7, 2012]
Sec. 6.5 Effective date of adjustments.
The adjustments made by Sec. 6.4 of this part, of the penalties
there specified, are effective on December 7, 2012, and said penalties,
as thus adjusted by the adjustments made by Sec. 6.4 of this part,
shall apply only to violations occurring after December 7, 2012, and
before the effective date of any future inflation adjustment thereto
made subsequent to December 7, 2012 as provided in Sec. 6.6 of this
part.
[77 FR 72917, Dec. 7, 2012]
Sec. 6.6 Subsequent adjustments.
The Secretary or his or her designee by regulation shall, at least
once every four years after October 23, 1996, make the inflation
adjustment, described in Section Five and required by Amended Section
Four, of each civil monetary penalty provided by law and within the
jurisdiction of the Department.
PART 7 [RESERVED]
[[Page 58]]
PART 8_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE
DEPARTMENT OF COMMERCE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS
ACT OF 1964--Table of Contents
Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.
Subpart B_General Compliance
8.7 Cooperation, compliance reports and reviews and access to records.
8.8 Complaints.
8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions; coordination.
Appendix A to Part 8--Federal Financial Assistance Covered By Title VI
Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).
Source: 38 FR 17938, July 5, 1973, unless otherwise noted.
Editorial Note: Nomenclature changes to part 8 appear at 68 FR
51352, Aug. 26, 2003.
Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec. 8.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as the ``Act'')
to the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program receiving Federal financial assistance from the
Department of Commerce. This part is consistent with achievement of the
objectives of the statutes authorizing the financial assistance given by
the Department of Commerce as provided in section 602 of the Act.
Sec. 8.2 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the types of Federal financial assistance listed in Appendix A
to this part and as said Appendix may be amended. It applies to money
paid, property transferred, or other Federal financial assistance
extended after January 9, 1965, pursuant to an application approved
prior to such effective date.
(b) This part does not apply to (1) any Federal financial assistance
by way of insurance or guaranty contracts, (2) money paid, property
transferred, or other assistance extended before January 9, 1965, except
where such assistance was subject to the title VI regulations of this
Department or of any other agency whose responsibilities are now
exercised by this Department, (3) any assistance to any individual who
is the ultimate beneficiary under any such program, or (4) any
employment practice, under any such program, of any employer, employment
agency, or labor organization except to the extent described in Sec.
8.4(c). The fact that a type of Federal financial assistance is not
listed in Appendix A 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 the list by notice published in the Federal Register.
Sec. 8.3 Definitions.
(a) Department means the Department of Commerce, and includes each
and all of its operating and equivalent other units.
(b) Secretary means the Secretary of Commerce.
(c) United States means the States of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa,
Guam, Wake
[[Page 59]]
Island, the Canal Zone, and the territories and possessions of the
United States, and the term State means anyone of the foregoing.
(d) Person means an individual in the United States who is or is
eligible to be a participant in or an ultimate beneficiary of any
program which receives Federal financial assistance, and includes an
individual who is an owner or member of a firm, corporation, or other
business or organization which is or is eligible to be a participant in
or an ultimate beneficiary of such a program. Where a primary objective
of the Federal financial assistance to a program is to provide
employment, ``person'' includes employees or applicants for employment
of a recipient or other party subject to this part under such program.
(e) Responsible department official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. It also means any officials so designated by
due delegation of authority within the Department to act in such
capacity with regard to any program under this part.
(f) Federal financial assistance includes
(1) Grants, loans, or agreements for participation in loans, of
Federal funds,
(2) The grant or donation of Federal property or interests in
property,
(3) The sale or lease of, or the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property or in property in which the Federal Government has an interest,
without consideration, or at a nominal consideration, or at a
consideration which is reduced, for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to or use by the recipient,
(4) Waiver of charges which would normally be made for the
furnishing of Government services,
(5) The detail of Federal personnel,
(6) Technical assistance, and
(7) Any Federal agreement, arrangement, contract, or other
instrument which has as one of its purposes the provision of assistance.
(g) Program or activity and program mean all of the operations of
any entity described in paragraphs (g)(1) through (4) of this section,
any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (g)(1), (2), or (3) of this section.
(h) Facility includes all or any portion of structures, equipment,
vessels, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration, contract for use, or acquisition of
facilities.
[[Page 60]]
(i) Recipient means any governmental, public or private agency,
institution, organization, or other entity, or any individual, who or
which is an applicant for Federal financial assistance, or to whom
Federal financial assistance is extended directly or through another
recipient. Recipient further includes a subgrantee, an entity which
leases or operates a facility for or on behalf of a recipient, and any
successors, assignees, or transferees of any kind of the recipient, but
does not include any person who is an ultimate beneficiary.
(j) Primary recipient means any recipient which is authorized or
required to extend or distribute Federal financial assistance to another
recipient.
(k) Applicant means one who submits an application, request, or plan
required to be approved by a responsible Department official, or by a
primary recipient, as a condition to eligibility for Federal financial
assistance, and ``application'' means such an application, request, or
plan.
(l) Other parties subject to this part includes any governmental,
public or private agency, institution, organization, or other entity, or
any individual, who or which, like a recipient, is not to engage in
discriminatory acts with respect to applicable persons covered by this
part, because of his or its direct or substantial participation in any
program, such as a contractor, subcontractor, provider of employment, or
user of facilities or services provided under any program.
[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]
Sec. 8.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory acts prohibited. (1) A recipient of
Federal financial assistance, or other party subject to this part, shall
not participate, directly or through contractual or other arrangements,
in any act or course of conduct which, on the ground of race, color, or
national origin:
(i) Denies to a person any service, financial aid, or other benefit
provided under the program;
(ii) Provides any service, financial aid, or other benefit, to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subjects a person to segregation or separate or other
discriminatory treatment in any matter related to his receipt (or
nonreceipt) of any such service, financial aid, property, or other
benefit under the program.
(iv) Restricts a person in any way in the enjoyment of services,
facilities, or any other advantage, privilege, property, or benefit
provided to others under the programs;
(v) Treats a person differently from others in determining whether
he satisfies any admission, enrollment, quota, eligibility, membership,
or other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Denies a person an opportunity to participate in the program
through the provision of property or services or otherwise, or affords
him an opportunity to do so which is different from that afforded others
under the program (including the opportunity to participate in the
program as an employee but only to the extent set forth in paragraph (c)
of this section);
(vii) Denies a person the same opportunity or consideration given
others to be selected or retained or otherwise to participate as a
contractor, subcontractor, or subgrantee;
(viii) Denies a person the opportunity to participate as a member of
a planning or advisory body which is an integral part of the program.
(2) A recipient, or other party subject to this part, in determining
the types of services, financial aid, or other benefits, or facilities
which will be provided under any program, or the class of persons to
whom, or the situations in which, such services, financial aid, other
benefits, or facilities will be provided under any such program, or the
class of persons to be afforded an opportunity to participate in any
such program, shall not, directly or through contractual or other
arrangements,
[[Page 61]]
utilize criteria or methods of administration which have the effect of
subjecting persons to discrimination because of their race, color, or
national origin, or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program as respect any
persons of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or other party subject to this part may not make selections with the
purpose or effect of excluding persons from, denying them the benefits
of, or subjecting them to discrimination under any program to which this
part applies, on the grounds of race, color or national origin; or with
the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act or this part.
(4) As used in this section, the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided or made available in or through or utilizing a facility
provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph and paragraph (c) of this section does not limit the
generality of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient or other party subject to this part
shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, use of facilities, and treatment of employees). Such
recipients and other parties subject to this part shall take affirmative
action to ensure that applicants are employed, and employees are treated
during employment without regard to their race, color, or national
origin. Such recipients and other parties subject to this part shall, as
may be required by supplemental regulations, develop a written
affirmative action plan. The requirements applicable to construction
employment under any such program shall be in addition to those
specified in or pursuant to Part III of Executive Order 11246 or any
Executive order which supersedes it. Federal financial assistance to
programs under laws funded or administered by the Department which has
as a primary objective the providing of employment include those set
forth in Appendix A II of this part.
(2) Where a primary objective of the Federal financial assistance to
a program to which this part applies is not to provide employment, but
discrimination on the grounds of race, color, or national origin, in the
employment practices of the recipient or other party subject to this
part, tends, on the grounds of race, color, or national origin, to
exclude persons from participating in, to deny them the benefits of, or
to subject them to discrimination under any such program, the provisions
of paragraph (c)(1) of this section shall apply to the employment
practices of the recipient or other party subject to this part, to the
extent necessary to assure equality of opportunity to, and
nondiscriminatory treatment of such persons.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]
Sec. 8.5 Nondiscrimination clause.
(a) Applicability. Every application for, and every grant, loan, or
contract
[[Page 62]]
authorizing approval of, Federal financial assistance and to provide a
facility subject to this part, and every modification or amendment
thereof, shall, as a condition to its approval and to the extension of
any Federal financial assistance pursuant thereto, contain or be
accompanied by an assurance that the program will be conducted in
compliance with all requirements imposed by or pursuant to this part.
The assurances shall be set forth in a nondiscrimination clause. The
responsible Department official shall specify the form and contents of
the nondiscrimination clause for each program as appropriate.
(b) Contents. Without limiting its scope or language in any way, a
nondiscrimination clause shall contain, where determined to be
appropriate, and in an appropriate form, reference to the following
assurances, undertakings, and other provisions:
(1) That the recipient or other party subject to this part will not
participate directly or indirectly in the discrimination prohibited by
Sec. 8.4, including employment practices when a program covering such
is involved.
(2) That when employment practices are covered, the recipient or
other party subject to this part will (i) in all solicitations or
advertisements for employees placed by or for the recipient, state that
qualified applicants will receive consideration for employment without
regard to race, color, or national origin; (ii) notify each labor union
or representative of workers with which it has a collective bargaining
agreement or other contract or understanding of the recipient's
commitments under this section; (iii) post the nondiscrimination clause
and the notice to labor unions in conspicuous places available to
employees and applicants for employment; and (iv) otherwise comply with
the requirements of Sec. 8.4(c).
(3) When continuing Federal financial assistance is involved, the
recipient thereunder (i) will state that the program is (or, in the case
of a new program, will be) conducted in compliance with all requirements
imposed by or pursuant to this part, and (ii) will provide for such
methods of administration for the program as are found by the
responsible Department official to give reasonable assurance that all
recipients of Federal financial assistance under such program and any
other parties connected therewith subject to this part will comply with
all requirements imposed by or pursuant to this part.
(4) That the recipient agrees to secure the compliance or to
cooperate actively with the Department to secure the compliance by
others with this part and the nondiscrimination clause as may be
directed under an applicable program. For instance, the recipient may be
requested by the responsible Department official to undertake and agree
(i) to obtain or enforce or to assist and cooperate actively with the
responsible Department official in obtaining or enforcing, the
compliance of other recipients or of other parties subject to this part
with the nondiscrimination required by this part; (ii) to insert
appropriate nondiscrimination clauses in the respective contracts with
or grants to such parties; (iii) to obtain and to furnish to the
responsible Department official such information as he may require for
the supervision or securing of such compliance; (iv) to carry out
sanctions for noncompliance with the obligations imposed upon recipients
and other parties subject to this part; and (v) to comply with such
additional provisions as the responsible Department official deems
appropriate to establish and protect the interests of the United States
in the enforcement of these obligations. In the event that the
cooperating recipient becomes involved in litigation with a noncomplying
party as a result of such departmental direction, the cooperating
recipient may request the Department to enter into such litigation to
protect the interests of the United States.
(5) In the case of real property, structures or improvements
thereon, or interests therein, which are acquired for a program
receiving Federal financial assistance, or in the case where Federal
financial assistance is provided in the form of a transfer of real
property or interest therein from the Federal Government, the instrument
effecting or recording the transfer shall contain
[[Page 63]]
a covenant running with the land assuring nondiscrimination for the
period during which the real property is used for a purpose for which
the Federal financial assistance is extended or for another purpose
involving the provision of similar services or benefits, or for as long
as the recipient retains ownership or possession of the property,
whichever, is longer. Where no transfer of property is involved, but
property is improved with Federal financial assistance, the recipient
shall agree to include such a covenant in any subsequent transfer of
such property. Where the property is obtained from the Federal
Government, such covenant may also include a condition coupled with a
right to be reserved by the Department to revert title to the property
in the event of a breach of the covenant where, in the discretion of the
responsible Department official, such a condition and right of reverter
is appropriate to the statute under which the real property is obtained
and to the nature of the grant and the grantee. In such event if a
transferee of real property proposes to mortgage or otherwise encumber
the real property as security for financing construction of new, or
improvement of existing facilities on such property for the purposes for
which the property was transferred, the responsible Department official
may agree, upon request of the transferee and if necessary to accomplish
such financing, and upon such conditions as he deems appropriate to
forebear the exercise of such right to revert title for so long as the
lien of such mortgage or other encumbrance remains effective.
(6) In programs receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real property
to the extent that rights to space on, over, or under any such property
are included as part of the program receiving such assistance the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(7) That a recipient shall not take action that is calculated to
bring about indirectly what this part forbids it to accomplish directly.
(8) Provisions specifying the extent to which like assurances will
be required of subgrantees, contractors and subcontractors, lessees,
transferees, successors in interest, and other participants in the
program.
(9) Provisions which give the United States a right to seek judicial
enforcement of the assurances.
(10) In the case where any assurances are required from an academic,
a medical care, detention or correctional, or any other institution or
facility, insofar as the assurances relate to the institution's
practices with respect to the admission, care, or other treatment of
persons by the institution or with respect to the opportunity of persons
to participate in the receiving or providing of services, treatment, or
benefits, such assurances shall be applicable to the entire institution
or facility.
(11) In the case where the Federal financial assistance is in the
form of or to aid in the acquisition of personal property, or real
property or interest therein or structures thereon, the assurance shall
obligate the recipients, or, in the case of a subsequent transfer, the
transferee, for the period during which the property is used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services and
benefits, or for as long as the recipient or transferee retains
ownership or possession of the property, whichever is longer. In the
case of any other type or form of assistance, the assurances shall be in
effect for the duration of the period during which Federal financial
assistance is extended to the program.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973, as amended at 68
FR 51352, Aug. 26, 2003]
Sec. 8.6 Applicability of this part to Department assisted programs.
The following examples illustrate the applicability of this part to
programs which receive or may receive Federal financial assistance
administered by the Department. The fact that a particular type of
Federal financial assistance is not listed does not indicate that it is
not covered by this part, The discrimination referred to is that
described in Sec. 8.4 against persons on the
[[Page 64]]
ground of race, color, or national origin.
(a) Assistance to support economic development. Discrimination in
which recipients and other parties subject to this part shall not
engage, directly or indirectly, includes discrimination in
(1) The letting of contracts or other arrangements for the planning,
designing, engineering, acquisition, construction, rehabilitation,
conversion, enlargement, installation, occupancy, use, maintenance,
leasing, subleasing, sales, or other utilization or disposition of
property or facilities purchased or financed in whole or in part with
the aid of Federal financial assistance;
(2) The acquisition of goods or services, or the production,
preparation, manufacture, marketing, transportation, or distribution of
goods or services in connection with a program or its operations;
(3) The onsite operation of the project or facilities;
(4) Services or accommodations offered to the public in connection
with the program; and
(5) In employment practices in connection with or which affect the
program (as defined in Sec. 8.4(c)); in the following programs:
(i) Any program receiving Federal financial assistance for the
purchase or development of land and facilities (including machinery and
equipment) for industrial or commercial usage.
(ii) Any program receiving Federal financial assistance in the form
of loans or direct or supplementary grants for the acquisition or
development of land and improvements for public works, public service or
development facility usage, and the acquisition, construction,
rehabilitation, alteration, expansion, or improvement of such
facilities, including related machinery and equipment.
(iii) In any program receiving any form of technical assistance
designed to alleviate or prevent conditions of excessive employment or
underemployment.
(iv) In any program receiving Federal financial assistance in the
form of administrative expense grants.
(b) Assistance to support the training of students. A current
example of such assistance is that received by State maritime academies
or colleges, by contract, of facilities (vessels), related equipment and
funds to train merchant marine officers. In this and other instances of
student training, discrimination which is prohibited by recipients and
other parties subject to this part includes discrimination in the
selection of persons to be trained and in their treatment by the
recipients in any aspect of the educational process and discipline
during their training, or in the availability or use of any academic,
housing, eating, recreational, or other facilities and services, or in
financial assistance to students furnished or controlled by the
recipients or incidental to the program. In any case where selection of
trainees is made from a predetermined group, such as the students in an
institution or area, the group must be selected without discrimination.
(c) Assistance to support mobile or other trade fairs. In programs
in which operators of mobile trade fairs using U.S. flag vessels and
aircraft and designed to exhibit and sell U.S. products abroad, or in
which other trade fairs or exhibitions, receive technical and financial
assistance, discrimination which is prohibited by recipients and other
parties subject to this part includes discrimination in the selection or
retention of any actual or potential exhibitors, or in access to or use
of the services or accommodations by, or otherwise with respect to
treatment of, exhibitors or their owners, officers, employees, or
agents.
(d) Assistance to support business entities eligible for trade
adjustment assistance. In programs in which eligible business entities
receive any measure or kind of technical, financial or tax adjustment
assistance because of or in connection with the impact of U.S.
international trade upon such business, discrimination which is
prohibited by recipients and other parties subject to this part includes
discrimination in their employment practices as defined in Sec. 8.4(c).
(e) Assistance to support research and development and related
activities. In programs in which individuals, educational or other
institutions, public governmental or business entities receive Federal
financial assistance in
[[Page 65]]
order to encourage or foster research or development activities as such,
or to obtain, promote, develop, or protect thereby technical,
scientific, environmental, or other information, products, facilities,
resources, or services which are to be made available to or used by
others; but where such programs do not constitute Government procurement
of property or services, discrimination which is prohibited by
recipients and other parties subject to this part includes
discrimination with respect to (1) the choice, retention or treatment of
contractors, subcontractors, subgrantees or of any other person; (2) the
provision of services, facilities, or financial aid; (3) the
participation of any party in the research activities; (4) the
dissemination to or use by any person of the results or benefits of the
research or development, whether in the form of information, products,
services, facilities, resources, or otherwise. If research is performed
within an educational institution under which it is expected that
students or others will participate in the research as a part of their
experience or training, on a compensated or uncompensated basis, there
shall be no discrimination in admission of students to, or in their
treatment by, that part of the school from which such students are drawn
or in the selection otherwise of trainees or participants. The recipient
educational institutions will be required to give the assurances
provided in Sec. 8.5(b)(10).
(f) Assistance to aid in the operations of vessels engaged in U.S.
foreign commerce. In programs in which the operators of American-flag
vessels used to furnish shipping services in the foreign commerce of the
United States receive Federal financial assistance in the form of
operating differential subsidies, discrimination which is prohibited by
recipients and other parties subject to this part includes
discrimination in soliciting, accepting or serving in any way passengers
or shippers of cargo entitled to protection in the United States under
the Act.
[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]
Subpart B_General Compliance
Sec. 8.7 Cooperation, compliance reports and reviews and access to
records.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients and other parties subject to this part in obtaining
compliance with this part and shall provide assistance and guidance to
recipients and other parties to help them comply voluntarily with this
part.
(b) Compliance reports. Each recipient and other party subject to
this part shall keep such records and submit to the responsible
Department official timely, complete, and accurate compliance reports at
such times and in such form and containing such information as the
responsible Department official may determine to be necessary to enable
him to ascertain whether the recipient or such other party has complied
or is complying with this part. In general, recipients should have
available for the department racial and ethnic data showing the extent
to which members of minority groups are beneficiaries of federally
assisted programs. In the case in which a primary recipient extends
Federal financial assistance to any other recipient, or under which a
recipient is obligated to obtain or to cooperate in obtaining the
compliance of other parties subject to this part, such other recipients
or other parties shall also submit such compliance reports to the
primary recipient or recipients as may be necessary to enable them to
carry out their obligations under this part.
(c) Access to sources of information. Each recipient or other party
subject to this part shall permit access by the responsible Department
official or his designee during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities, as may be pertinent to ascertain compliance with this part.
Where any information required of a recipient or other party is in the
exclusive possession of another who fails or refuses to furnish this
information, the recipient or other party shall so certify in its report
and shall set forth what efforts it has made to obtain the information.
[[Page 66]]
(d) Information to beneficiaries and participants. Each recipient or
other party subject to this part shall make available to participants,
beneficiaries, and other interested persons such information regarding
the provisions of this part and its applicability to the program for
which the recipient receives Federal financial assistance, and make such
information available to them in such manner as this part and the
responsible Department official finds necessary to apprise such persons
of the protections against discrimination assured them by the Act and
this part.
(e) Compliance review. The responsible Department official or his
designee shall from time to time review the practices of recipients and
other parties subject to this part to determine whether they are
complying with this part.
Sec. 8.8 Complaints.
(a) Filing complaints. Any person who believes himself or any
specific class of persons to be subjected to discrimination prohibited
by this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint shall
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
(b) [Reserved]
Sec. 8.9 Intimidatory or retaliatory acts prohibited.
(a) No recipient or other party subject to this part shall
intimidate, threaten, coerce, or discriminate against, any person for
the purpose of interfering with any right or privilege secured by
section 601 of the Act of this part, or because the person has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part.
(b) The identity of complainants shall be kept confidential except
to the extent necessary to carry out the purposes of this part,
including the conduct of any investigation, hearing, or judicial or
other proceeding arising thereunder.
Sec. 8.10 Investigations.
(a) Making the investigation. The responsible Department official or
his designee will make a prompt investigation whenever a compliance
review, report, complaint, or any other information indicates a possible
failure to comply with this part. The investigation shall include, where
appropriate, a review of the pertinent practices and policies of the
recipient or other party subject to this part, the circumstances under
which the possible noncompliance with this part occurred, and other
factors relevant to a determination as to whether there has been a
failure to comply with this part.
(b) Resolution of matters. (1) If an investigation pursuant to
paragraph (a) of this section indicates a failure to comply with this
part, the responsible Department official will so inform the recipient
or other party subject to this part and the matter will be resolved by
informal means whenever possible. If it has been determined that the
matter cannot be resolved by informal means, action will be taken as
provided for in Sec. 8.11.
(2) If an investigation does not warrant action pursuant to
paragraph (b)(1) of this section, the responsible Department official
will so inform the recipient or other party subject to this part and the
complainant, if any, in writing.
Sec. 8.11 Procedures for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including
[[Page 67]]
other titles of the Act), or any assurance or other contractural
undertaking, and (2) any applicable proceeding under State or local law.
(b) Noncompliance with Sec. 8.5. If a recipient or other party
subject to this part fails or refuses to furnish an assurance required
under Sec. 8.5 or otherwise fails or refuses to comply with a
requirement imposed by or pursuant to that section, Federal financial
assistance may be refused in accordance with the procedures of paragraph
(c) of this section. The Department shall not be required to provide
assistance in such a case during the pendency of the administrative
proceedings under said paragraph except that the Department shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application or contract
therefor approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible Department official has advised the recipient
or other party subject to this part of his failure to comply and has
determined that compliance cannot be secured by voluntary means, (2)
there has been an express finding on the record, after opportunity for
hearing, of a failure by such recipient or other party to comply with a
requirement imposed by or pursuant to this part, (3) the action has been
approved by the Secretary pursuant to Sec. 8.13(e), and (4) the
expiration of 30 days after the Secretary has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the program involved, a full written report of the
circumstances and the grounds for such action. Any action to suspend or
terminate or to refuse to grant or to continue Federal financial
assistance shall be limited to the particular political entity, or part
thereof, or other recipient or other party as to whom such a finding has
been made and shall be limited in its effect to the particular program,
or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other party has been
notified of its failure to comply and of the action to be taken to
effect compliance, and (3) the expiration of at least 10 days from the
mailing of such notice to the recipient or other party. During this
period of at least 10 days additional efforts shall be made to persuade
the recipient or other party to comply with this part and to take such
corrective action as may be appropriate.
Sec. 8.12 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 8.11(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
recipient or other party subject to this part. This notice shall advise
the recipient or other party of the action proposed to be taken, the
specific provision under which the proposed action against it is to be
taken, and the matters of fact or law asserted as the basis for this
action, and either (1) fix a date not less than 20 days after the date
of such notice within which the recipient or other party may request of
the responsible Department official that the matter be scheduled for
hearing, or (2) advise the recipient or other party that the matter in
question has been set down for hearing at a stated place and time. The
time and place so fixed shall be reasonable and shall be subject to
change for cause. The complainant, if any, shall be advised of the time
and place of the hearing. A recipient or other party may waive a hearing
and submit written information and argument for the record. The failure
of a recipient or other party to request a hearing under this paragraph
of this section or to appear at a hearing for which a date has been set
shall be deemed to be a waiver of the right to a hearing under section
602 of the Act and Sec. 8.11(c) and consent to the making of a decision
on the basis of such information as is available.
[[Page 68]]
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, D.C., at a time fixed by the
responsible Department official or hearing officer unless he determines
that the convenience of the recipient or other party or of the
Department requires that another place be selected. Hearings shall be
held before the responsible Department official, or at his discretion,
before a hearing officer.
(c) Right to counsel. In all proceedings under this section, the
recipient or other party and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedures Act),
and in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the recipient or other party shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more 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 of procedures not inconsistent with this part. Final decisions
in such cases, insofar as this part is concerned, shall be made in
accordance with Sec. 8.13.
Sec. 8.13 Decisions and notices.
(a) Decision by person other than the responsible Department
official. If the hearing is held by a hearing officer such hearing
officer shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the recipient or other party subject to this part. Where the
initial decision is made by the hearing officer, the recipient or other
party may within 30 days of the mailing of such notice of initial
decision file with the responsible Department official his exceptions to
the initial decision, with his reasons therefor. In the absence of
exceptions, the responsible Department official may on his own motion
within 45 days after the initial decision serve on the recipient or
other party a notice that he will review the decision. Upon the filing
of such exceptions or of such notice of review, the responsible
Department official shall review the initial decision and issue his own
decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible Department official.
[[Page 69]]
(b) Decisions on record or review by the responsible Department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing officer
pursuant to paragraph (a) of this section, or whenever the responsible
Department official conducts the hearing, the recipient or other party
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
recipient or other party and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 8.12(a) a decision shall be made by
the responsible departmental official on the record and a copy of such
decision shall be given in writing to the recipient or other party, and
to the complainant, if any.
(d) Ruling required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient or other party has failed to
comply.
(e) Approval by Secretary. Any final decision of a responsible
Department official (other than the Secretary) which provides for the
suspension or termination of, or the refusal to grant or continue,
Federal financial assistance, or the imposition of any other sanction
available under this part of the Act, shall promptly be transmitted to
the Secretary, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, 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 recipient or other party determined by such decision to be in
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the responsible
Department official that it will fully comply with this part.
(g) Posttermination proceedings. (1) Any recipient or other party
which is adversely affected by an order issued under paragraph (f) of
this section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any recipient or other party adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the recipient or other
party has met the requirements of paragraph (g)(1) of this section. If
the responsible Department official determines that those requirements
have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the recipient or other party may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record in accordance with rules of procedure issued by the
responsible Department official. The recipient or other party will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
Sec. 8.14 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
[[Page 70]]
Sec. 8.15 Effect on other laws; supplementary instructions;
coordination.
(a) Effect on other laws. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
individuals on the ground of race, color, or national origin under any
program to which this part applies, and which authorizes the suspension
or termination of or refusal to grant or to continue Federal financial
assistance to any recipient or other party subject to this part of such
assistance for failure to comply with such requirements, are hereby
superseded to the extent that such discrimination is prohibited by this
part, except that nothing in this part shall be deemed to relieve any
one of any obligations assumed or imposed under any such superseded
regulation, order, instruction, or like direction prior to January 9,
1965. Nothing in this part, however, shall be deemed to supersede any of
the following (including future amendments thereof):
(1) Executive Order 11246 and regulations issued thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other regulations or instructions, insofar as such order, regulations,
or instructions prohibit discrimination on the ground of race, color, or
national origin in any program or situation to which this part is
inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible Department official
shall issue and promptly make available to interested parties forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 8.13),
including the achievement of effective coordination and maximum
uniformity within the Department and within the executive branch of the
government in the application of title VI and this part to similar
programs and in similar situations. Any action taken, determination
made, or requirement imposed by an official of another Department or
agency acting pursuant to an assignment of responsibility under this
paragraph shall have the same effect as though such action had been
taken by the responsible official of this Department.
Sec. Appendix A to Part 8--Federal Financial Assistance Covered by Title
VI
i. federal financial assistance to which title 15, subtitle a, part 8
applies
Economic Development Administration
1. Loans, grants, technical and other assistance for public works
and development facilities, for supplementing Federal grants-in-aid, for
private businesses, and for other purposes, including assistance in
connection with designated economic development districts and regions
(Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3121 et seq.).
2. Financial and technical assistance to firms to aid economic
adjustment to the effects of increased imports in direct competition
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
3. Assistance to communities adversely affected by increased imports
in direct competition with products manufactured in the community area
(Trade Act of 1974, 19 U.S.C. 2371-2374).
4. Assistance to projects involving construction of local and State
public facilities in order to reduce unemployment and provide State and
local governments with badly needed public facilities (Local Public
Works Capital Development and Assistance Act of 1976, 42 U.S.C. 6701-
6710).
5. Trade adjustment assistance: Loans, dissemination of technical
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).
Maritime Administration
1. Operating differential subsidy assistance to operators of U.S.
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).
2. Assistance to operate State maritime academies and colleges to
train merchant marine officers (46 U.S.C. 1381-1388).
3. Ship construction differential subsidies, direct payments
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).
[[Page 71]]
National Bureau of Standards
1. Grants to universities and other research organizations for fire
research and safety programs (15 U.S.C. 278f).
National Fire Prevention and Control Administration
1. Academy planning assistance: To assist States in the development
of training and education in the fire prevention and control area (15
U.S.C. 2201-2219).
2. State fire incident reporting assistance: To assist States in the
establishment and operation of a statewide fire incident and casualty
reporting system (15 U.S.C. 2201-2219).
3. Public education assistance planning: Publications, audiovisual
presentations and demonstrations, research, testing, and experimentation
to determine the most effective means for such public education (15
U.S.C. 2205c).
4. Policy development assistance: Studies of the operations and
management aspects of fire services (15 U.S.C. 2207c).
National Oceanic and Atmospheric Administration
1. Assistance to States, educational institutions, and the
commercial fishing industry for the development of tuna and other latent
fisheries (16 U.S.C. 758e).
2. Assistance to States for the development and implementation of
programs to protect and study certain species of marine mammals (16
U.S.C. 1379b).
3. Financial assistance to States with agencies which have entered
into a cooperative agreement to assist in the preservation of threatened
and endangered species (16 U.S.C. 1535).
4. Assistance to coastal States for the development of estuarine
sanctuaries to serve as field laboratories and for acquiring access to
public beaches (16 U.S.C. 1461).
5. Assistance to coastal States for the development, implementation,
and administration of coastal zone management programs (16 U.S.C. 1454-
1455).
6. Assistance to coastal States to help communities in dealing with
the economic, social, and environmental consequences resulting from
expanded coastal energy activity (16 U.S.C. 1456).
7. Authority to enter into cooperative agreements with ``colleges
and universities, with game and fish departments of the several States,
and with nonprofit organizations relating to cooperative research
units.'' Assistance limited to assignment of personnel, supplies, and
incidental expenses (16 U.S.C. 753 a and b).
8. Grants for education and training of personnel in the field of
commercial fishing, ``to public and nonprofit private universities and
colleges * * *'' (16 U.S.C. 760d).
9. Grants for ``office and any other necessary space'' for the
Northern Pacific Halibut Commission (16 U.S.C. 772).
10. The ``Dingell Johnson Act'': Apportionment of dollars to States
for restoration and management of sport or recreational species (16
U.S.C. 777-777i; 777k).
11. Authority to cooperate with and provide assistance to States in
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
12. Authority to cooperate with and provide assistance to certain
States and territories in the study and control of ``Crown of Thorns''
starfish (16 U.S.C. 1211-1213).
13. Technical assistance to fishing cooperatives regarding catching
and marketing aquatic products (15 U.S.C. 521-522).
14. Fish research and experimentation program cooperation with other
agencies in acquisition of lands, construction of buildings, employment
of personnel in establishing and maintaining research stations (16
U.S.C. 778a).
15. Assistance to upgrade commercial fishing vessels and gear (16
U.S.C. 742c).
16. Assistance to State projects designed for the research and
development of commercial fisheries resources of the nation (16 U.S.C.
779a-779f).
17. Assistance to State and other non-Federal interests under
cooperative agreements to conserve, develop, and enhance anadromous and
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
18. Grants and other assistance under the National Sea Grant College
and Program Act of 1966: To support establishment of major university
centers for marine research, education, training, and advisory services
(33 U.S.C. 1121-1124).
19. Geodetic surveys and services; advisory services; dissemination
of technical information (33 U.S.C. 883a).
20. Nautical charts assistance; advisory services; dissemination of
technical information (33 U.S.C. 883a).
21. River and flood forecast and warning services; advisory services
(15 U.S.C. 313).
22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49
U.S.C. 1351 and 1463).
23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
24. Provision for the Weather Service to assist in joint projects
``of mutual interest'' (15 U.S.C. 1525).
National Telecommunications and Information Administration
1. Grants for the planning and construction of public
telecommunications facilities for the production and distribution of
noncommercial educational and cultural radio and television programming
and related instructional and informational materials. (Public
Telecommunications Financing Act of 1978, 47 U.S.C. Sections 390-394).
[[Page 72]]
Office of Minority Business Enterprise
1. Assistance to minority business enterprises: Grants, contracts,
advisory service, technical information (15 U.S.C. 1512; title III of
the Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).
Regional Action Planning Commissions
1. Supplemental grants to Federal grant-in-aid programs and
technical assistance funds for planning, investigations, studies,
training programs, and demonstration projects, including demonstrations
in energy, transportation, health and nutrition, education and
indigenous arts and crafts (title V of the Public Works and Economic
Development Act of 1965, as amended, 42 U.S.C. 3181-3196).
United States Travel Service
1. Assistance to strengthen the domestic and foreign commerce of the
United States, and to promote friendly understanding and appreciation of
the United States by encouraging foreign residents to visit the United
States (22 U.S.C. 2121 et seq.).
Departmentwide
1. Authority to make basis scientific research grants (42 U.S.C.
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).
ii. a primary objective of the financial assistance authorized by the
following statutes, already listed above in appendix ai, is to provide
employment
1. Public Works and Economic Development Act of 1965, as amended (42
U.S.C. 3121 et seq.).
2. Trade Act of 1974 (19 U.S.C. 2341-2354).
3. Local Public Works Capital Development and Assistance Act of 1976
(42 U.S.C. 6701-6710)
[43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979]
PART 8a_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
8a.100 Purpose and effective date.
8a.105 Definitions.
8a.110 Remedial and affirmative action and self-evaluation.
8a.115 Assurance required.
8a.120 Transfers of property.
8a.125 Effect of other requirements.
8a.130 Effect of employment opportunities.
8a.135 Designation of responsible employee and adoption of grievance
procedures.
8a.140 Dissemination of policy.
Subpart B_Coverage
8a.200 Application.
8a.205 Educational institutions and other entities controlled by
religious organizations.
8a.210 Military and merchant marine educational institutions.
8a.215 Membership practices of certain organizations.
8a.220 Admissions.
8a.225 Educational institutions eligible to submit transition plans.
8a.230 Transition plans.
8a.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
8a.300 Admission.
8a.305 Preference in admission.
8a.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
8a.400 Education programs or activities.
8a.405 Housing.
8a.410 Comparable facilities.
8a.415 Access to course offerings.
8a.420 Access to schools operated by LEAs.
8a.425 Counseling and use of appraisal and counseling materials.
8a.430 Financial assistance.
8a.435 Employment assistance to students.
8a.440 Health and insurance benefits and services.
8a.445 Marital or parental status.
8a.450 Athletics.
8a.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
8a.500 Employment.
8a.505 Employment criteria.
8a.510 Recruitment.
8a.515 Compensation.
8a.520 Job classification and structure.
8a.525 Fringe benefits.
8a.530 Marital or parental status.
8a.535 Effect of state or local law or other requirements.
8a.540 Advertising.
8a.545 Pre-employment inquiries.
8a.550 Sex as a bona fide occupational qualification.
[[Page 73]]
Subpart F_Procedures
8a.600 Notice of covered programs.
8a.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52877, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 8a.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 8a.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means with respect to any program
receiving Federal financial assistance, the Secretary or other official
of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. Designated agency official also means any
officials so designated by due delegation of authority within the
Department to act in such capacity with regard to any program under
these Title IX regulations.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
[[Page 74]]
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
8a.100 through 8a.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 8a.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
[[Page 75]]
interpreted to alter any affirmative action obligations that a recipient
may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as
amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as
amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as
amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended
by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 8a.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. 8a.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 8a.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
[[Page 76]]
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.
8a.205 through 8a.235(a).
Sec. 8a.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. 8a.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. 8a.135 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 8a.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
[[Page 77]]
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 8a.300 through 8a.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. 8a.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment 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. 8a.200 Application.
Except as provided in Sec. Sec. 8a.205 through 8a.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. 8a.205 Educational institutions and other entities controlled by
religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 8a.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. 8a.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),
[[Page 78]]
the Young Women's Christian Association (YWCA), the Girl Scouts, the Boy
Scouts, and Camp Fire Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 8a.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 8a.225 and 8a.230, and Sec. Sec. 8a.300 through
8a.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Sec. Sec. 8a.300 through .310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 8a.300
through 8a.310 apply to each recipient. A recipient to which Sec. Sec.
8a.300 through 8a.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 8a.300 through
8a.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 8a.300 through 8a.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 8a.300 through 8a.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. 8a.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 8a.300 through 8a.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. 8a.300 through
8a.310.
Sec. 8a.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 8a.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
[[Page 79]]
class during the period covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 8a.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 8a.300 through
8a.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. 8a.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. 8a.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) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
[[Page 80]]
(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. 8a.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. 8a.300 through Sec. Sec. 8a.310 apply,
except as provided in Sec. Sec. 8a.225 and Sec. Sec. 8a.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. 8a.300 through 8a.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 8a.300 through 8a.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. 8a.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
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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. 8a.305 Preference in admission.
A recipient to which Sec. Sec. 8a.300 through 8a.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. 8a.300 through 8a.310.
Sec. 8a.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
8a.300 through 8a.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. 8a.110(a), and may choose to undertake
such efforts as affirmative action pursuant to Sec. 8a.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 8a.300 through 8a.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. 8a.300 through 8a.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 8a.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
8a.400 through 8a.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. 8a.300 through 8a.310 do not
apply, or an entity, not a recipient, to which Sec. Sec. 8a.300 through
8a.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 8a.400
through 8a.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
[[Page 82]]
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. 8a.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 8a.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. 8a.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
[[Page 83]]
(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. 8a.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. 8a.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 8a.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
[[Page 84]]
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. 8a.450.
Sec. 8a.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.
8a.500 through 8a.550.
Sec. 8a.440 Health and insurance benefits and services.
Subject to Sec. 8a.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 8a.500 through 8a.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. 8a.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.
[[Page 85]]
(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. 8a.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. 8a.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 designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in
[[Page 86]]
no event later than one year from September 29, 2000. A recipient that
operates or sponsors interscholastic, intercollegiate, club, or
intramural athletics at the secondary or postsecondary school level
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
Sec. 8a.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. 8a.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(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. 8a.500
through 8a.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 8a.500 through 8a.550
apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 8a.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.
[[Page 87]]
Sec. 8a.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. 8a.500 through 8a.550.
Sec. 8a.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. 8a.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. 8a.550.
Sec. 8a.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 8a.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 8a.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. 8a.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-
[[Page 88]]
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. 8a.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 8a.500 through 8a.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. 8a.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. 8a.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. 8a.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
8a.500 through 8a.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F_Procedures
Sec. 8a.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 8a.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
[[Page 89]]
found at 15 CFR 8.7 through 8.15, and 13 CFR part 317.
[65 FR 52877, Aug. 30, 2000]
PART 8b_PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN
FEDERALLY ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF
COMMERCE--Table of Contents
Subpart A_General Provisions
Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance
procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B_Employment Practices
8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.
8b.14 Preemployment inquiries.
8b.15 Employment on ships.
Subpart C_Accessibility
8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.
Subpart D_Post Secondary Education
8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.
Subpart E_Procedures
8b.26 Procedures.
Authority: 29 U.S.C. 794.
Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes to part 8b appear at 68 FR
51353, Aug. 26, 2003.
Subpart A_General Provisions
Sec. 8b.1 Purpose.
Section 504 of the Rehabilitation Act of 1973, as amended, prohibits
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance. The purpose of this part is to
implement section 504 with respect to programs or activities receiving
Federal financial assistance from the Department of Commerce.
Sec. 8b.2 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Commerce and to each program or activity
receiving such assistance. The requirements of this part do not apply to
the ultimate beneficiaries of Federal financial assistance in the
program or activity receiving Federal financial assistance.
Sec. 8b.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and by the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C.
794 (1976 & Supp. II 1978)).
(b) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a recipient as a condition to becoming a recipient.
(c) Department means the Department of Commerce and any of its
constituent units authorized to provide Federal financial assistance.
(d) Facility means all or any portion of buildings, ships,
structures, equipment, roads, walks, parking lots, industrial parks, or
other real or personal property or interest in such property.
(e) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guarantee), or any other arrangement by which the Department provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
[[Page 90]]
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(f) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (g) of this section.
(g) Handicapped person--(1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) For purposes of employment, the term ``handicapped person'' does
not include any person who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents that individual from performing the
duties of the job in question, or whose employment, because of current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others.
(3) As used in paragraph (g)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities;
(C) The term ``physical or mental impairment'' includes, but is not
limited to, such diseases and conditions as orthopedic, visual speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, working, and receiving education or vocational
training.
(iii) Has a record of such an impairment means that the individual
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life
activities.
(iv) Is regarded as having an impairment means that the individual:
(A) Has a physical or mental impairment that does not substantially
limit major life activities, but that is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(C) Has none of the impairments defined in paragraph (g)(3)(i) of
this section, but is treated by a recipient as having such an
impairment.
(h) Program or activity means all of the operations of any entity
described in paragraphs (h)(1) through (4) of this section, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
[[Page 91]]
(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 (h)(1), (2), or (3) of this section.
(i) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to post secondary and vocational education
services, a handicapped person who meets the academic and technical
standards requisite to admission or participation in the recipient's
education program or activity;
(3) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(j) Recipient means any State or its political subdivisions, any
instrumentality of a State or its political subdivisions, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
indirectly through another recipient, or including any successor,
assignee, or transferee of a recipient, but excluding the ultimate
beneficiary of the assistance.
(k) Secretary means the Secretary of Commerce, U.S. Department of
Commerce.
(l) Section 504 means section 504 of the Act.
(m) Small recipient means a recipient who serves fewer than 15
beneficiaries and who employs fewer than 15 employees at all times
during a grant year.
[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]
Sec. 8b.4 Discrimination prohibited.
(a) General. No qualified handicapped individual shall, on the basis
of handicap, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination under any program or
activity that receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped individual the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped individual an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped individual with any aid,
benefit, or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped individuals or to any class of handicapped individuals,
unless such action is necessary to provide qualified handicapped
individuals with aid, benefits, or services that are as effective as
those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
individual by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any aid, benefit, or service to beneficiaries of the
recipient's program or activity;
(vi) Deny a qualified handicapped individual the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped individual in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefits, or services.
(2) For purposes of this part, aid, benefits, and services must
afford handicapped individuals an equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement as afforded
[[Page 92]]
to others, in the most integrated setting appropriate to the
individual's needs. However, aid, benefits and services, to be equally
effective, need not produce the identical result or level of achievement
for handicapped and nonhandicapped individuals.
(3) A recipient may not deny a qualified handicapped individual the
opportunity to participate in its regular aid, benefits, or services,
despite the existence of separate or different aid, benefits, or
services which are established in accordance with this part.
(4) A recipient may not, directly or through contractual or other
arrangements, use criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped
individuals to discrimination on the basis of handicap;
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program or
activity with respect to handicapped individuals; or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(5) In determining the geographic site or location of a facility, an
applicant for assistance or a recipient may not make selections:
(i) That have the effect of excluding handicapped individuals from,
denying them the benefit of, or otherwise subjecting them to
discrimination under any program or activity that receives Federal
financial assistance; or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped individuals.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving Federal financial assistance
includes any aid, benefit, or service provided in or through a facility
that has been constructed, expanded, altered, leased, rented or
otherwise acquired, in whole or in part, with Federal financial
assistance.
(7)(i) In providing services, recipients to which this subpart
applies, except small recipients, shall ensure that no handicapped
participant is denied the benefits of, excluded from participation in,
or otherwise subjected to discrimination under the program or activity
operated by the recipient because of the absence of auxiliary aids for
participants with impaired sensory, manual or speaking skills. A
recipient shall operate each program or activity to which this subpart
applies so that, when viewed in its entirety, auxiliary aids are readily
available. The Secretary may require small recipients to provide
auxiliary aids in order to ensure that no handicapped participant is
denied the benefits of, excluded from participation in, or otherwise
subjected to discrimination under the program or activity operated by
small recipients, when this would not significantly impair the ability
of the small recipient to provide benefits or services.
(ii) Auxiliary aids may include brailled and taped materials,
interpreters, telecommunications devices, or other equally effective
methods of making orally delivered information available to persons with
hearing impairments, readers for persons with visual impairments,
equipment adapted for use by persons with manual impairments, and other
similar devices and actions. Recipients need not provide attendants,
individually prescribed devices, readers for personal use or study, or
other devices or services of a personal nature.
(c) Aid, benefits, or services limited by Federal law. The exclusion
of non-handicapped persons from aid, benefits, or services limited by
Federal statute or Executive order to handicapped individuals, or the
exclusion of a specific class of handicapped individuals from aid,
benefits, or services limited by Federal statute or Executive order to a
different class of handicapped individuals is not prohibited by this
part.
(d) Integrated setting. Recipients shall administer programs or
activities in the most integrated setting appropriate to the needs of
qualified handicapped individuals.
(e) Communications with individuals with impaired vision and
hearing. Recipients shall ensure that communications
[[Page 93]]
with their applicants, employees and beneficiaries are available to
persons with impaired vision or hearing. Appropriate modes of
communication may include braille, enlarged type, sign language and
telecommunications devices.
[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]
Sec. 8b.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance to
which this part applies shall submit an assurance, on a form specified
by the Secretary, that the program or activity will be operated in
compliance with this part. An applicant may incorporate these assurances
by reference in subsequent applications to the Department.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or structures on the
property, the assurance will obligate the recipient or, in the case of a
subsequent transfer, the transferee, for the period during which the
real property or structures are used for the purpose for which Federal
financial assistance is extended, or for another purpose involving the
provision of similar services or benefits.
(2) In case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases, the assurance will obligate the recipient
for the period during which Federal financial assistance is extended or
the federally-funded program or activity is operated, whichever is
longer.
(c) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the
Department, the instrument effecting or recording this transfer shall
contain a covenant running with the land to assure nondiscrimination for
the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits.
(2) Where no transfer or property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (c)(1) of
this section in the instrument effecting or recording any subsequent
transferee of the property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant shall also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant. If a transferee of real property proposed
to mortgage or otherwise encumber the real property as security to
finance construction of new, or improvement of existing, facilities on
the property for the purposes for which the property was transferred,
the Secretary may agree to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance
remains effective. Such an agreement by the Secretary may be entered
into only upon the request of the transferee (recipient) if it is
necessary to accomplish such financing and upon such terms and
conditions as the Secretary deems appropriate.
(d) Interagency agreements. Where funds are granted by the
Department to another Federal agency to carry out the objectives of
Federal financial assistance under a law administered by the Department,
and where the grant obligates the recipient agency to comply with the
rules and regulations of the Department applicable to that grant the
provisions of this part shall apply to programs or activities operated
with such funds.
Sec. 8b.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Secretary deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another
[[Page 94]]
recipient exercises control over the recipient that has discriminated,
the Secretary, where appropriate, may require either or both recipients
to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action:
(i) With respect to handicapped individuals who would have been
participants in the program or activity had the discrimination not
occurred; and
(ii) With respect to handicapped persons who are no longer
participants in the recipient's program or activity, but who were
participants in the program or activity when the discrimination
occurred; and
(iii) with respect to employees and applicants for employment.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped individuals.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate, with the assistance of interested persons, including
handicapped individuals or organizations representing handicapped
individuals, its current policies and practices and the effects thereof
that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, any policies and practices that do not meet the
requirements of this part; and
(iii) Take, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient, other than a small recipient, shall for at least
three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) The Secretary may, as he or she deems necessary, direct
recipients to conduct additional self-evaluations, in accordance with
the requirements of paragraph (c)(1) of this section.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]
Sec. 8b.7 Designation of responsible employee and adoption of grievance
procedures.
(a) Designation of responsible employee. A recipient, other than a
small recipient, shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient, other than a
small recipient, shall adopt grievance procedures that incorporate
appropriate due process standards and that provide for the prompt and
equitable resolution of complaints alleging any action prohibited by
this part. Such procedures need not be established with respect to
complaints from applicants for employment or from applicants for
admission to post secondary educational institutions.
Sec. 8b.8 Notice.
(a) A recipient, other than a small recipient, shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants and employees, including those with impaired
vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of handicap in violation of
Section 504 and of this part. The notification shall state, where
appropriate, that the recipient does not discriminate in the admission
or access to, or treatment or employment in, its programs or activities.
The
[[Page 95]]
notification shall also include an identification of the responsible
employee designated pursuant to Sec. 8b.7(a). A recipient shall make
the initial notification required by this paragraph within 90 days of
the effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publications in
newspapers and magazines, placement of notices in recipient's
publications, and distribution of memoranda or other written
communication. A recipient shall take appropriate steps to ensure that
notice is available to persons with impaired vision or hearing.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information made available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications, or by revising and reprinting the materials
and publications.
Sec. 8b.9 Administrative requirements for small recipients.
The Secretary may require small recipients to comply with Sec. Sec.
8b.7 and 8b.8, in whole or in part, when the Secretary finds a violation
of this part or finds that such compliance will not significantly impair
the ability of the small recipient to provide benefits or services.
Sec. 8b.10 Effect of state or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped individuals to
receive services, participate in programs or activities, or practice any
occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped individuals than
for nonhandicapped persons.
Subpart B_Employment Practices
Sec. 8b.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped individual shall, on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives Federal financial assistance.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this subparagraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeships.
(b) Specific activities. The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising and the processing of applicants for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation; pension or other benefit the applicant or employee
receives from any other source.
Sec. 8b.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or metal limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation
[[Page 96]]
would impose an undue hardship on the operation of its program or
activity.
(b) Reasonable accommodation may include:
(1) Making the facilities used by the employees in the area where
the program or activity is conducted, including common areas used by all
employees such as hallways, restrooms, cafeterias and lounges, readily
accessible to and usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees, number of participants, number and type
of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
(e) Nothing in this paragraph shall relieve a recipient of its
obligation to make its program or activity accessible as required in
subpart C of this part, or to provide auxiliary aids, as required by
Sec. 8b.4(b)(7).
Sec. 8b.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped
individuals or any class of handicapped individuals unless;
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped individuals are not shown by
the Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment so as best to ensure that, when administered to an applicant
or employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately to reflect the applicant's or
employee's job skills aptitude, or whatever factor the test purports to
measure, rather than reflecting the applicant's or employee's impaired
sensory, manual, or speaking skills (except where those skills are the
factors that the test purports to measure).
Sec. 8b.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct preemployment inquiry of an applicant for
employment as to whether the applicant is a handicapped individual, or
as to the nature or severity of a handicap. A recipient may, however,
make preemployment inquiry into an applicant's ability to perform job-
related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 8b.6(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in this federally
assisted program or activity pursuant to Sec. 8b.6(b), or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph
[[Page 97]]
(d) of this section, that refusal to provide it will not subject the
applicant or employee to any adverse treatment, and that it will be used
only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That:
(1) All employees are subject to such an examination regardless of
handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except:
(1) Employing officials may obtain the information after making a
conditional decision to make a job offer to the applicant or the
applicant was placed conditionally in a job pool or placed conditionally
on an eligibility list;
(2) Supervisors and managers may be informed regarding restrictions
on the work or duties of qualified handicapped individuals and regarding
necessary accommodations;
(3) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(4) Government officials investigating compliance with the Act shall
be provided information upon request.
Sec. 8b.15 Employment on ships.
No qualified handicapped individual possessing an appropriate
license or certificate obtained from the United States Coast Guard
pursuant to the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et
seq. shall, on the basis of handicap, be subjected to discrimination in
employment on ships under any program or activity to which this part
applies.
Subpart C_Accessibility
Sec. 8b.16 Discrimination prohibited.
No qualified handicapped individual shall, because a recipient's
facilities are inaccessible to or unusable by handicapped individuals,
be denied the benefits of, be excluded from participation in, or
otherwise be subjected to discrimination under any program or activity
to which this part applies.
Sec. 8b.17 Existing facilities.
(a) Accessibility. A recipient shall operate each program or
activity to which this part applies so that when each part is viewed in
its entirety it is readily accessible to qualified handicapped
individuals. This paragraph does not require a recipient to make each of
its existing facilities or every part of a facility accessible to and
usable by qualified handicapped individuals. However, if a particular
program is available in only one location, that site must be made
accessible or the aid, benefit, or service must be made available at an
alternative accessible site or sites. Accessibility requires nonpersonal
aids to make the aid, benefit, or service accessible to mobility
impaired persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aides to beneficiaries, home visits, delivery
of services at alternate accessible sites, alteration of existing
facilities and construction of new facilities in conformance with the
requirement of Sec. 8b.19, or any other method that results in making
its program or activity accessible to handicapped individuals. A
recipient is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with paragraph (a) of this section. In choosing among available methods
for meeting the requirement of paragraph (a) of this section, a
recipient shall give priority to those methods that serve handicapped
individuals in the most integrated setting appropriate.
[[Page 98]]
(c) If a small recipient finds, after consultation with a qualified
handicapped individual seeking its services, that there is no method of
complying with paragraph (a) of this section other than making a
significant alteration in its existing facilities or facility, the small
recipient may, as an alternative, refer the qualified handicapped
individual to other providers of those services that are accessible at
no additional cost to the handicapped.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this part. Where structural changes in facilities are necessary, such
changes shall be made within three years of the effective date of this
part, but in any event as expeditiously as possible.
(e) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within six months of the
effective date of this part, a transition plan setting forth the steps
necessary to complete such changes. The plan shall be developed with the
assistance of interested persons, including handicapped persons or
organizations representing handicapped persons. A copy of the transition
plan shall be made available for public inspection. The plan shall, at a
minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to qualified
handicapped individuals;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full accessibility under Sec. 8b.17(a) and, if the time period of the
transition plan is longer than one year, identify the steps that will be
taken during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information as to the existence and location of
services, activities and facilities that are accessible to and usable by
qualified handicapped individuals.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982;
68 FR 51353, Aug. 26, 2003]
Sec. 8b.18 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of the
facility is readily accessible to and usable by qualified handicapped
individuals, if the construction was commenced after the effective date
of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is
readily accessible to and usable by qualified handicapped individuals.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of August 17, 1990, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations
[[Page 99]]
that have little likelihood of being accomplished without removing or
altering a load-bearing structural member.
[47 FR 17746, Apr. 23, 1982, as amended at 55 FR 29320, July 18, 1990]
Subpart D_Post Secondary Education
Sec. 8b.19 Application of this subpart.
Subpart D applies to post secondary education programs or
activities, including post secondary vocational education programs or
activities, that receive Federal financial assistance for the operation
of, such programs or activities.
Sec. 8b.20 Admission and recruitment.
(a) General. Qualified handicapped may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient
to which this subpart applies:
(1) May not apply limitations upon the number or proportion of
handicapped individuals who may be admitted; and
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped individuals or any
class of handicapped individuals unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available.
(3) Shall assure itself that (i) admissions tests are selected and
administered so as best to ensure that, when a test is administered to
an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level of whatever other factor the test purports
to measure, rather than reflecting the applicant's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills
are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that,
on the whole, are accessible to handicapped individuals; and
(4) Except as provided in paragraph (c) of this section, may not
make pre-admission inquiry as to whether an applicant for admission is a
handicapped individual but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Pre-admission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to Sec. 8b.6(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to
Sec. 8b.6(b), the recipient may invite applicants for admission to
indicate whether and to what extent they are handicapped, Provided,
That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
Sec. 8b.21 Treatment of students.
(a) General. No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be
[[Page 100]]
denied the benefits of, or otherwise be subjected to discrimination
under any academic research, occupational training, housing, health
insurance, counseling, financial aid, physical education, athletics,
recreation, transportation, other extracurricular, or other post
secondary education aid, benefits, or services to which this subpart
applies.
(b) A recipient to which this subpart applies that considers
participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, education
programs or activities operated by the recipient shall assure itself
that the other education program or activity, as a whole, provides an
equal opportunity for the participation of qualified handicapped
persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap exclude any qualified handicapped student from any course or
study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
program or activity in the most integrated setting appropriate.
Sec. 8b.22 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies
shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have
the effect of discriminating, on the basis of handicap, against a
qualified handicapped applicant or student. Academic requirements that
the recipient can demonstrate are essential to the instruction being
pursued by such student or to any directly related licensing requirement
will not be regarded as discriminatory within the meaning of this
section. Modifications may include changes in the length of time
permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and
adaptation of the manner in which specific courses are conducted.
(b) Other rules. A recipient to which this subpart applies may not
impose upon handicapped students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides in campus buildings, that
have the effect of limiting the participation of handicapped students in
the recipient's education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating student's academic achievement, a recipient to
which this subpart applies shall provide such methods for evaluating the
achievement of students who have a handicap that impairs sensory,
manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking
skills (except where such skills are the factors that the test purports
to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies
shall ensure that no handicapped student is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
because of the absence of educational auxiliary aids for students with
impaired sensory, manual, or speaking skills. A recipient shall operate
each program or activity to which this subpart applies so that, when
viewed in its entirety, auxiliary aids are readily available.
(2) Auxiliary aids may include taped text, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
Sec. 8b.23 Housing provided by the recipient.
(a) A recipient that provides housing to its nonhandicapped students
shall provide comparable, convenient, and accessible housing to
handicapped students at the same cost as to others. At the end of
transition period provided for in subpart C, such housing shall be
[[Page 101]]
available in sufficient quantity and variety so that the scope of
handicapped students choice of living accommodations is, as a whole,
comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall take such action as may be necessary to assure itself
that such housing is, as a whole, made available in a manner that does
not result in discrimination on the basis of handicap.
Sec. 8b.24 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped individuals, a recipient to which
this subpart applies may not (i) on the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility
for assistance, or otherwise discriminate or (ii) assist any entity or
person that provides assistance to any of the recipient's students in a
manner that discriminates against qualified handicapped individuals on
the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trust, bequest, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that such
employment opportunities, as a whole, are made available in a manner
that would not violate subpart B if they were provided by the recipient.
(c) Employment of student by recipients. A recipient that employs
any of its students may not do so in a manner that violates subpart B.
Sec. 8b.25 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors intercollegiate,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation of differentiation is consistent with the requirements of
Sec. 8b.22(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient to which this
subpart applies that provides personal, academic, or vocational
counseling guidance, or placement services to its students shall provide
these services without discrimination on the basis of handicap. The
recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities. This
requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may
present obstacles to handicapped persons in their pursuit of particular
careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of such organizations do not
permit discrimination otherwise prohibited by this subpart.
Subpart E_Procedures
Sec. 8b.26 Procedures.
The enforcement provisions applicable to Title VI of the Civil
Rights Act of 1964 found at Sec. Sec. 8.7 through 8.15 of this subtitle
shall apply to this part.
[[Page 102]]
PART 8c_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE--Table
of Contents
Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4-8c.9 [Reserved]
8c.10 Self-evaluation.
8c.11 Notice.
8c.12-8c.29 [Reserved]
8c.30 General prohibitions against discrimination.
8c.31-8c.39 [Reserved]
8c.40 Employment.
8c.41-8c.48 [Reserved]
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52-8c.59 [Reserved]
8c.60 Communications.
8c.61-8c.69 [Reserved]
8c.70 Compliance procedures.
Authority: 29 U.S.C 794.
Source: 53 FR 19277, May 27, 1988, unless otherwise noted.
Sec. 8c.1 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
Sec. 8c.2 Application.
This part applies to all programs or activities conducted by the
agency except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
Sec. 8c.3 Definitions.
For purposes of this part, the term--
Agency means the Department of Commerce.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) ``Physical or mental impairment'' includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or
[[Page 103]]
mental illness, and specific learning disabilities. The term ``physical
or mental impairment'' includes, but is not limited to, such diseases
and conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism
(2) ``Major life activities'' includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) ``Has a record of such an impairment'' means has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(4) ``Is regarded as having an impairment'' means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
towards such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of
this definition but is treated by the agency as having such an
impairment.
Qualified individual with handicaps means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) ``Qualified handicapped person'' as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by Sec. 8c.40.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978) Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]
Sec. Sec. 8c.4-8c.9 [Reserved]
Sec. 8c.10 Self-evaluation.
(a) The agency shall, by July 26, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
Sec. 8c.11 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in
[[Page 104]]
such manner as the Secretary of Commerce or the Secretary's designee
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
Sec. Sec. 8c.12-8c.29 [Reserved]
Sec. 8c.30 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of a planning or advisory board; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicaps; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program with respect to individuals with handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
[[Page 105]]
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 8c.31-8c.39 [Reserved]
Sec. 8c.40 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR Part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 8c.41-8c.48 [Reserved]
Sec. 8c.49 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 8c.50, no qualified individual
with handicaps shall, because the agency's facilities are inaccessible
to or unusable by individuals with handicaps, be denied the benefits of,
be excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
Sec. 8c.50 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with section Sec. 8c.50(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the Secretary of Commerce or the
Secretary's designee after considering all agency resources available
for use in the funding and operation of the conducted program or
activity, and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action would result in such an
alteration or such burdens, the agency shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with handicaps receive the benefits
and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the agency shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by September 26, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by July 26, 1991, but in any event as expeditiously as
possible.
[[Page 106]]
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by January 26, 1989, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its program or activities to individuals with
handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 8c.51 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 8c.52-8c.59 [Reserved]
Sec. 8c.60 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applications and
beneficiaries by telephone, telecommunication devices for deaf persons
(TDD's) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signs at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 8c.60 would result
in such alteration or burdens. The decision that compliance would result
in such alteration of burdens must be made by the Secretary of Commerce
or the Secretary's designee after considering all agency resources
available for use in the funding and operation of the conducted program
or activity, and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action required
[[Page 107]]
to comply with this section would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that,
to the maximum extent possible, individuals with handicaps receive the
benefits and services of the program or activity.
Sec. Sec. 8c.61-8.69 [Reserved]
Sec. 8c.70 Compliance procedures
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Chief of the Compliance Divison shall be responsible for
coordinating implemention of this section. Complaints may be sent to
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert
C. Hoover Building, 14th and Constitution Avenue, Washington, DC, 20230.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 8c.70(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Assistant
Secretary for Administration.
(j) The Assistant Secretary for Administration shall notify the
complainant of the results of the appeal within 60 days of the receipt
of the request. If the Assistant Secretary for Administration determines
that additional information is needed from the complainant, he or she
shall have 60 days from the date of receipt of the additonal information
to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of the section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]
PART 9_PROCEDURES FOR A VOLUNTARY LABELING PROGRAM FOR HOUSEHOLD
APPLIANCES AND EQUIPMENT TO EFFECT ENERGY CONSERVATION--Table of
Contents
Sec.
9.0 Purpose.
9.1 Goal of program.
9.2 Definitions.
9.3 Appliances and equipment included in program.
9.4 Development of voluntary energy conservation specifications.
9.5 Participation of manufacturers.
9.6 Termination of participation.
9.7 Department of Commerce energy conservation mark.
9.8 Amendment or revision of voluntary energy conservation
specifications.
[[Page 108]]
9.9 Consumer education.
9.10 Coordination with State and local programs.
9.11 Annual report.
Authority: Sec. 2, 31 Stat. 1449, as amended, sec. 1, 64 Stat. 371;
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI; Message from
the President of the United States Concerning Energy Resources, April
18, 1973 (119 Cong. Rec. H2886).
Source: 38 FR 29574, Oct. 26, 1973, unless otherwise noted.
Sec. 9.0 Purpose.
The purpose of this part is to establish procedures relating to the
Department's voluntary labeling program for household appliances and
equipment to promote and effect energy conservation.
Sec. 9.1 Goal of program.
(a) This program was initiated in response to the direction of
President Nixon in his 1973 Energy Message that the Department of
Commerce in cooperation with the Council on Environmental Quality and
the Environmental Protection Agency develop a voluntary labeling program
which would apply to energy-consuming home appliances.
(b) The goal of this program is to encourage manufacturers to
provide consumers, at the point of sale, with information on the energy
consumption and energy efficiency of household appliances and equipment.
Such information, presented in a uniform manner readily understandable
to consumers, would be displayed on labels attached to or otherwise
provided with the appliances or equipment. The labels will include a
system intended to make it possible for consumers to compare by cost or
otherwise the energy consumption and energy efficiency characteristics
when purchasing household appliances and equipment and to select those
that can effect savings in energy consumption.
Sec. 9.2 Definitions.
(a) The term Secretary means the Secretary of Commerce.
(b) The term manufacturer means any person engaged in the
manufacturing or assembling of new appliances or equipment in the United
States, or in the importing of such products for sale or resale, or any
person whose brand or trademark appears on such products who owns such
brand or trademark and has authorized its use on such products, if the
brand or trademark of the person actually manufacturing or assembling
the products does not appear on the products.
(c) The term energy consumption means the energy resources used by
appliances or equipment under conditions of use approximating actual
operating conditions insofar as practical as determined through test
procedures contained or identified in a final Voluntary Energy
Conservation Specification published under Sec. 9.4(e).
(d) The term energy efficiency means the energy use of appliances or
equipment relative to their output of services, as determined through
test procedures contained or identified in a final Voluntary Energy
Conservation Specification published under Sec. 9.4(e).
(e) The term consumer means the first person who purchases a new
appliance or item of equipment for purposes other than resale.
(f) The term class of appliance or equipment means a group of
appliances or equipment whose functions or features are similar, and
whose functional output covers a range that may be of interest to
consumers.
(g) The term Specification means a Voluntary Energy Conservation
Specification developed under Sec. 9.4.
(h) The term label means printed matter affixed to or otherwise
provided with appliances or equipment and meeting all the requirements
called for in a Voluntary Energy Conservation Specification published
under Sec. 9.4(e).
[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]
Sec. 9.3 Appliances and equipment included in program.
The appliances and equipment included in this program are room and
central air conditioners, household refrigerators, home freezers,
clothes washers, dishwashers, clothes dryers, kitchen ranges and ovens,
water heaters, comfort heating equipment, and television receivers.
Additional appliances and equipment may be included in the program by
the Secretary pursuant to rule making procedures as set
[[Page 109]]
out in 5 U.S.C. 553. Individual units of appliances and equipment
manufactured for export are not included in this program.
[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]
Sec. 9.4 Development of voluntary energy conservation specifications.
(a) The Secretary in cooperation with appropriate Federal agencies
and in cooperation with affected manufacturers, distributors, retailers,
consumers, environmentalists, and other interested parties shall develop
proposed Specifications for the specific classes of appliances and
equipment covered under Sec. 9.3.
(b) Each Specification shall as a minimum include:
(1) A description of the class of appliance or equipment covered by
the Specification, listing the distribution of energy efficiencies for
that class of appliance or equipment.
(2) Listings or descriptions of test methods to be used in measuring
the energy consumption and/or energy efficiency characteristics of the
class of appliance or equipment.
(3) A prototype Label and directions for displaying the Label on or
with appliances or equipment of that class. The Label shall be
prominent, readable, and visible and shall include information that will
assist the consumer in comparing by cost or otherwise the energy
consumption and/or energy efficiency characteristics of a particular
appliance or item of equipment with all others in its class. The Label
shall also include the Department of Commerce Energy Conservation Mark
specified in Sec. 9.7.
(4) Conditions for the participation of manufacturers in the
program.
(c) The test methods listed or described in the Specification
pursuant to Sec. 9.4(b)(2) shall be those described in existing
nationally-recognized voluntary standards where such methods are
appropriate. Where appropriate test methods do not so exist, they will
be developed by the Department of Commerce in cooperation with
interested parties.
(d) The Secretary upon development of a proposed Specification shall
publish in the Federal Register a notice giving the complete text of the
proposed Specification, and any other pertinent information, and
inviting any interested person to submit written comments on the
proposed Specification within 30 days after its publication in the
Federal Register, unless another time limit is provided by the
Secretary. Interested persons wanting to express their views in an
informal hearing may do so if, within 15 days after the proposed
Specification is published in the Federal Register, they request the
Secretary to hold a hearing. Such informal hearings shall be held so as
to give all interested persons opportunity for the oral presentation of
data, views, or arguments in addition to the opportunity to make written
submissions. Notice of such hearings shall be published in the Federal
Register. A transcript shall be kept of any oral presentations.
(e) The Secretary, after consideration of all written and oral
comments and other materials received in accordance with paragraph (d)
of this section, shall publish in the Federal Register within 30 days
after the final date for receipt of comments, or as soon as practicable
thereafter, a notice either:
(1) Giving the complete text of a final Specification, including
conditions of use, and stating that any manufacturer of appliances or
equipment in the class concerned desiring voluntarily to use the Label
and Energy Conservation Mark with such appliances or equipment must
advise the Department of Commerce; or
(2) Stating that the proposed Specification will be further
developed before final publication; or
(3) Withdrawing the proposed Specification from further
consideration.
Sec. 9.5 Participation of manufacturers.
(a) Manufacturers desiring to participate in this program will so
notify the Department of Commerce. The notification will identify the
particular Specification to be used and the manufacturer's model numbers
for the products to be labeled. The notification will also state that
the manufacturer will abide by all conditions contained in the
Specification and will desist from
[[Page 110]]
using the Label and Energy Conservation Mark if requested by the
Department of Commerce under the provisions of Sec. 9.6.
(b) The conditions for participation will be set out in the
Specification and will include, but not be limited to, the following:
(1) Prior to the use of a Label the manufacturer will make or have
made the measurements to obtain the information required for inclusion
on the Label and, if requested, will forward within 30 days such
measurement data to the Department of Commerce. Such measurement data
will be kept on file by the manufacturer or his agent for two years
after that model of appliance or equipment is no longer manufactured
unless otherwise provided in the Specification. The use of independent
test laboratories or national certification programs available to any
manufacturer is acceptable for the purposes of this program.
(2) The manufacturer will describe the test results on the Label as
prescribed in the Specification.
(3) The manufacturer will display or arrange to display, in
accordance with the appropriate Specification, the Label on or with each
individual unit of appliance or equipment within the subject class and
with the same brand name manufactured by him except for units exported
from the United States. All models with the same brand name that fall
within the class must be included in the program unless they are for
export only.
(4) The manufacturer agrees at his expense to comply with any
reasonable request of the Department of Commerce to have appliances or
equipment manufactured by him tested to determine that testing has been
done according to the relevant Specification.
(5) Manufacturers may reproduce the Department of Commerce Labels
and Energy Conservation Mark in advertising provided that the entire
Label, complete with all information required to be displayed at the
point of retail sale, is shown legibly.
Sec. 9.6 Termination of participation.
(a) The Department of Commerce upon finding that a manufacturer is
not complying with the conditions of participation set out in these
procedures or in a Specification may terminate upon 30 days notice the
manufacturer's participation in the program: Provided, That the
manufacturer shall first be given an opportunity to show cause why the
participation should not be terminated. Upon receipt of a notice of
termination, a manufacturer may request within 30 days a hearing under
the provisions of 5 U.S.C. 558.
(b) A manufacturer may at any time terminate his participation and
responsibilities under this program with regard to a specific class of
products by giving written notice to the Secretary that he has
discontinued use of the Label and Energy Conservation Mark for all
appliances or equipment within that class.
Sec. 9.7 Department of Commerce energy conservation mark.
The Department of Commerce shall develop an Energy Conservation Mark
which shall be registered in the U.S. Patent Office under 15 U.S.C. 1054
for use on each Label described in a Specification.
Sec. 9.8 Amendment or revision of voluntary energy conservation
specifications.
The Secretary may by order amend or revise any Specification
published under Sec. 9.4. The procedure applicable to the establishment
of a Specification under Sec. 9.4 shall be followed in amending or
revising such Specification. Such amendment or revision shall not apply
to appliances or equipment manufactured prior to the effective date of
the amendment or revision.
Sec. 9.9 Consumer education.
The Department of Commerce, in close cooperation and coordination
with interested Government agencies, appropriate industry trade
associations and industry members, and interested consumers and
environmentalists shall carry out a program to educate consumers
relative to the significance of the labeling program. Some elements of
this program shall also be directed toward informing retailers and other
interested groups about the program.
[[Page 111]]
Sec. 9.10 Coordination with State and local programs.
The Department of Commerce will establish and maintain an active
program of communication with appropriate state and local government
offices and agencies and will furnish and make available information and
assistance that will promote to the greatest practicable extent
uniformity in State, local, and Federal programs for the labeling of
household appliances and equipment to effect energy conservation.
Sec. 9.11 Annual report.
The Secretary will prepare an annual report of activities under the
program, including an evaluation of the program and a list of
participating manufacturers and classes of appliances and equipment.
PART 10_PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT
STANDARDS--Table of Contents
Sec.
10.0 General.
10.1 Initiating development of a new standard.
10.2 Funding.
10.3 Development of a proposed standard.
10.4 Establishment of the Standard Review Committee.
10.5 Development of a recommended standard.
10.6 Procedures for acceptance of a recommended standard.
10.7 Procedure when a recommended standard is not supported by a
consensus.
10.8 Standing Committee.
10.9 Publication of a standard.
10.10 Review of published standards.
10.11 Revision or amendment of a standard.
10.12 Editorial changes.
10.13 Withdrawal of a published standard.
10.14 Appeals.
10.15 Interpretations.
10.16 Effect of procedures.
Authority: Sec. 2.31 Stat. 1449, as amended, sec. 1, .64 Stat 371;
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI (3 CFR 1943-
1948 Comp., p. 1065).
Source: 51 FR 22497, June 20, 1986, unless otherwise noted.
Sec. 10.0 General.
(a) Introduction. The Department of Commerce (hereinafter referred
to as the ``Department'') recognizes the importance, the advantages, and
the benefits of voluntary standards and standardization activities. Such
standards may cover, but are not limited to, terms, classes, sizes
(including quantities of packaged consumer commodities), dimensions,
capacities, quality levels, performance criteria, inspection
requirements, marking requirements, testing equipment, test procedures
and installation procedures. Economic growth is promoted through:
(1) Reduction of manufacturing costs, inventory costs, and
distribution costs;
(2) Better understanding among manufacturers, producers, or
packagers (hereinafter referred to as producers), distributors, users,
and consumers; and
(3) Simplification of the purchase, installation, and use of the
product being standardized.
(b) Requirements for Department of Commerce sponsorship. The
Department may sponsor the development of a voluntary Product Standard
if, upon receipt of a request, the Department determines that:
(1) The proposed standard is likely to have substantial public
impact;
(2) The proposed standard reflects the broad interest of an industry
group or an organization concerned with the manufacture, production,
packaging, distribution, testing, consumption, or use of the product, or
the interest of a Federal or State agency;
(3) The proposed standard would not duplicate a standard published
by, or actively being developed or revised by, a private standards-
writing organization to such an extent that it would contain similar
requirements and test methods for identical types of products, unless
such duplication was deemed by the Department to be in the public
interest;
(4) Lack of government sponsorship would result in significant
public disadvantage for legal reasons or reasons of domestic and
international trade;
(5) The proposed standard is not appropriate for development and
maintenance by a private standards-writing organization; and
(6) The proposed standard will be funded by a proponent organization
or government agency to cover costs for administrative and technical
support services provided by the Department.
[[Page 112]]
(c) Role of the Department. The Department assists in the
establishment of a Voluntary Product Standard as follows:
(1) Acts as an unbiased coordinator in the development of the
standard;
(2) Provides editorial assistance in the preparation of the
standard;
(3) Supplies such assistance and review as is required to assure the
technical soundness of the standard;
(4) Seeks satisfactory adjustment of valid points of disagreement;
(5) Determines the compliance with the criteria established in these
procedures for such voluntary standards;
(6) Provides secretarial functions for each committee appointed by
the Department under these procedures;
(7) Publishes the standard as a public document;
(8) Administers the funds for administrative and technical support
services; and
(9) Seeks listing for standards developed under these procedures as
American National Standards through the American National Standards
Institute, when deemed appropriate by the Department.
(d) Role of producers, distributors, users, and consumers.
Producers, distributors, users, consumers, and other interested groups
may contribute to the development of a Voluntary Product Standard as
follows:
(1) Initiate and participate in the development of the standard;
(2) Provide technical or other relevant counsel, as appropriate,
relating to the standard;
(3) Promote the use of, and support for, the standard; and
(4) Assist in keeping the standard current with respect to advancing
technology and marketing practices.
(e) Role of the National Institute of Standards & Technology. The
National Institute of Standards & Technology (NIST) administers these
procedures for the Department. Any communications concerning these
procedures (e.g., questions, clarifications, appeals) should be
addressed to the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]
Sec. 10.1 Initiating development of a new standard.
(a) Any group or association of producers, distributors, users, or
consumers, or a testing laboratory, or a State or Federal agency, may
request the Department to initiate the development and publication of a
Voluntary Product Standard under these procedures. Requests shall be in
writing, signed by a representative of the group or agency, and
forwarded to the Department. The initial request may be accompanied by a
copy of a draft of the suggested standard.
(b) The request shall include a commitment to provide sufficient
funding to cover all costs associated with the development and
maintenance of the proposed Voluntary Product Standard.
(c) The Department may require additional information such as
technical, marketing, or other appropriate data essential to discussion
and development of the proposed standard, including, but not limited to,
physical, mechanical, chemical, or performance characteristics, and
production figures.
(d) Upon receipt of an appropriate request and after a determination
by the Department that the development of a Voluntary Product Standard
is justified, the Department may initiate the development by requesting
that a draft of the suggested standard be prepared by an appropriate
committee, provided such a draft has not previously been submitted under
paragraph (a) of this section.
(e) The Department may initiate the development of a Voluntary
Product Standard, if such action is deemed by the Department to be in
the public interest, notwithstanding the absence of a request from an
outside source. A voluntary standard initiated by the Department shall
be processed in accordance with all requirements of these procedures and
shall be developed in the same manner as a voluntary standard initiated
by any group referred to in paragraph (a) of this section.
(f) An agreement regarding funding procedures and receipt of a
deposit estimated by the Department to be sufficient to cover the first
year's costs shall occur prior to the initiation of any project.
[[Page 113]]
Sec. 10.2 Funding.
Groups who represent producers, distributors, consumers or users, or
others that wish to act or continue to act as proponent organizations
for the development or maintenance of a Voluntary Product Standard will
be required to pay for administrative and technical support services
provided by the National Institute of Standards & Technology and such
other direct or indirect costs associated with the development or
maintenance of that standard as may be deemed appropriate by the
Department, including costs to the Department in connection with the
operation of the Standard Review Committee and the Standing Committee.
Funds may also be provided by a government agency at the request of a
proponent organization or when acting on its own behalf for the
development or maintenance of a Voluntary Product Standard. Proponents
of standards that meet sponsorship criteria established in these
procedures shall furnish an initial deposit of funds sufficient to cover
the first year's services and other costs. Estimated annual costs will
be based on an hourly rate for salary and overhead established by the
Department for the National Institute of Standards & Technology's
administrative and technical support services plus estimates of direct
costs to provide funds for such items as the travel of consumer
representatives unable to otherwise attend committee meetings, travel
for Department staff, and printing costs. Project funds will be reviewed
annually. Excess funds may be refunded or applied to the next accounting
period. Should funds from deposits be inadequate during an accounting
period, work on the project will continue only if funds are restored to
a level estimated adequate to complete the 12-month period.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]
Sec. 10.3 Development of a proposed standard.
(a) A proposed standard as submitted to the Department:
(1) Shall be based on adequate technical information, or, in the
case of size standards (including standards covering the quantities for
packaged consumer commodities), on adequate marketing information, or
both, as determined to be appropriate by the Department;
(2) Shall not be contrary to the public interest;
(3) Shall be technically appropriate and such that conformance or
nonconformance with the standard can be determined either during or
after the manufacturing process by inspection or other procedures which
may be utilized by either an individual or a testing facility competent
in the particular field;
(4) Shall follow the format prescribed by the National Institute of
Standards & Technology. (Copies of the recommended format may be
obtained from the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.);
(5) Shall include performance requirements if such are deemed by the
Department to be technically sound, feasible, and practical, and the
inclusion of such is deemed to be appropriate;
(6) May include dimensions, sizes, material specifications, product
requirements, design stipulations, component requirements, test methods,
testing equipment descriptions, and installation procedures. The
appropriateness of the inclusion in a standard of any particular item
listed in this subparagraph shall be determined by the Department; and
(7) Shall be accompanied by rational statements pertaining to the
requirements and test methods contained in the standard, if deemed
necessary by the Department.
(b) A proposed standard that is determined by the Department to meet
the criteria set forth in paragraph (a) of this section may be subjected
to further review by an appropriate individual, committee, organization,
or agency (either government or nongovernment, but not associated with
the proponent group).
(c) A proposed standard may be circulated by the Department to
appropriate producers, distributors, users, consumers, and other
interested groups for consideration and comment as well
[[Page 114]]
as to others requesting the opportunity to comment.
(d) The proponent group or appropriate committee which drafted the
initial proposal under Sec. 10.1(d) shall consider all comments and
suggestions submitted by the reviewer designated under paragraph (b) of
this section, and those received by the Department as a result of any
circulation under paragraph (c) of this section, and may make such
adjustments in the proposal as are technically sound and as are believed
to cause the standard to be generally acceptable to producers,
distributors, users, consumers, and other interested parties. The
proposal will then be submitted to the Department for further
processing.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]