[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2017 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, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            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                                                 227
          Chapter II--National Institute of Standards and 
          Technology, Department of Commerce                       299
  Finding Aids:
      Table of CFR Titles and Chapters........................     411
      Alphabetical List of Agencies Appearing in the CFR......     431
      List of CFR Sections Affected...........................     441

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                     ----------------------------

                     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.

                     ----------------------------

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                               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 
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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 
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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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``[RESERVED]'' TERMINOLOGY

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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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this volume.

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    Director,
    Office of the Federal Register.
    January 1, 2017.

                                
                                      
                            

  

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                               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, 2017.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                  TITLE 15--COMMERCE AND FOREIGN TRADE




                   (This book contains parts 0 to 299)

  --------------------------------------------------------------------
                                                                    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

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             Subtitle A--Office of the Secretary of Commerce

  --------------------------------------------------------------------

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.............................          55
5               Operation of vending stands.................          58
6               Civil monetary penalty adjustments for 
                    inflation...............................          60
7               [Reserved]

8               Nondiscrimination in federally assisted 
                    programs of the Department of Commerce--
                    effectuation of Title VI of the Civil 
                    Rights Act of 1964......................          65
8a              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          79
8b              Prohibition of discrimination against the 
                    handicapped in federally assisted 
                    programs operated by the Department of 
                    Commerce................................          96
8c              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Commerce.............................         109
9               Procedures for a voluntary labeling program 
                    for household appliances and equipment 
                    to effect energy conservation...........         115
10              Procedures for the development of voluntary 
                    product standards.......................         118
11              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         128
12              Fair packaging and labeling.................         129

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13              Intergovernmental review of Department of 
                    Commerce programs and activities........         131
14              [Reserved]

15              Legal proceedings...........................         134
16              Procedures for a voluntary consumer product 
                    information labeling program............         145
17              Personnel exchanges between Federal 
                    laboratories and non-Federal entities...         151
18              Attorney's fees and other expenses..........         153
19              Commerce debt collection....................         160
20              Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         177
21-22           [Reserved]

23              Use of penalty mail in the location and 
                    recovery of missing children............         183
24              [Reserved]

25              Program.....................................         186
26              [Reserved]

27              Protection of human subjects................         201
28              New restrictions on lobbying................         212
29              [Reserved]

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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

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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.



Secs. 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

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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 Secs. 14.2, 14.3, and 14.4 of the Regulations (28 CFR Part 
14).
    (b) Claims shall be filed with the Assistant General Counsel for 
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
    (c) If a claim is filed elsewhere in the Department, it shall 
immediately be recorded and transmitted to the Assistant General Counsel 
for Finance and Litigation.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63 
FR 29945, June 2, 1998]



Sec. 2.5  Adjudication and settlement of claims.

    (a) Upon receipt of a claim by the Assistant General Counsel for 
Finance and Litigation, the time and date of receipt shall be recorded. 
The Assistant General Counsel may, after recording the claim, transmit 
it to the Departmental office or primary operating unit involved in the 
claim and request

[[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 provisions.
4.2  Public reading rooms.
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.

    Editorial Note: Nomenclature changes to part 4 appear at 80 FR 
70154, Nov. 13, 2015.



                  Subpart A_Freedom of Information Act



Sec. 4.1  General provisions.

    (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 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. In addition, as a matter of policy, the Department 
shall make discretionary releases of records or information exempt from 
disclosure under the FOIA when required to do so in accordance with 
current law and/or Executive Branch policy. This policy does not create 
any right enforceable in court.
    (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).
    (c) The Office of Government Information Services (OGIS) within the 
National Archives and Records Administration offers mediation services 
to resolve disputes between requesters and agencies as a non-exclusive 
alternative to litigation. Requesters with concerns about the handling 
of their requests may contact OGIS.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62557, Oct. 20, 2014]



Sec. 4.2  Public reading rooms.

    (a) Records that the FOIA requires to be made available for public 
inspection and copying are accessible electronically through the 
Department's ``Electronic FOIA Library'' on the Department's Web site, 
http://www.doc.gov, which includes links to Web sites for those 
components that maintain Electronic FOIA Libraries. These records may 
also be accessible at the FOIAonline Web site, http://
foiaonline.regulations.gov. Each component of the Department is 
responsible for determining which of its records are required to be made 
available, as well as identifying additional records of interest to the 
public that are appropriate for disclosure, and for making those records 
available either in its own Electronic Library or in the Department's 
central Electronic FOIA Library. Components that maintain their own 
Electronic FOIA Library are designated as such in Appendix A to this 
part. Each component shall also maintain and make available 
electronically a current subject-matter index of the records made 
available electronically. Each component shall ensure that posted 
records and indices are updated regularly, at least quarterly.
    (b) If the requester does not have access to the Internet and wishes 
to obtain information regarding publicly available information, he or 
she may contact the component's FOIA office. Appendix A to this part 
contains the contact information for the components' FOIA offices. Some 
components may also maintain physical public reading rooms. These 
components and their contact information are listed in Appendix A to 
this part.

[[Page 22]]

    (c) The Department and its components shall maintain and make 
available electronically for public inspection:
    (1) A current index providing 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;
    (3) A general index of the records described in paragraph (c)(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.

[79 FR 62558, Oct. 20, 2014]



Sec. 4.3  Records under the FOIA.

    (a) Records under the FOIA include all Government records, 
regardless of format, medium or physical characteristics, and electronic 
records and information, audiotapes, videotapes, Compact Disks, DVDs, 
and photographs.
    (b) In response to a FOIA request, the Department has no obligation 
to create, compile, or obtain from outside the Department a record to 
satisfy a request (for example, extrapolating information from existing 
agency records, reformatting available information, preparing new 
electronic programs or databases, or creating data through calculations 
of rations, proportions, percentages, trends, frequency distributions, 
correlations, or comparisons). In complying with a request for records 
(including data and other electronically-stored information), whether 
the Department creates or compiles records (as by undertaking 
significant programming work) or merely extracts them from an existing 
database is fact dependent. The Department shall undertake reasonable 
efforts to search for records stored in electronic format (including 
data and other electronically-stored information).
    (c) Department officials may, upon request, create and provide new 
records to the public pursuant to statutes that authorize the creation 
and provision of new records for a fee, 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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62558, Oct. 20, 2014]



Sec. 4.4  Requirements for making requests.

    (a) How made and addressed. The Department has a decentralized 
system for responding to FOIA requests, with each component designating 
a FOIA office to process records from that component. All components 
have the capability to receive requests electronically either through 
electronic mail (email) or the FOIAonline Web site, http://
www.foiaonline.regulations.gov. A request for Department records that 
are not customarily made available to the public as part of the 
Department's regular informational services (or pursuant to a user fee 
statute), must be in writing and shall be processed under the FOIA, 
regardless of whether the FOIA is mentioned in the request. Requests 
must include the requester's full name and a legible return address. 
Requesters may also include other contact information, such as an email 
address and a telephone number. For the

[[Page 23]]

quickest handling, the request (and envelope, if the request is mailed 
or hand delivered) should be marked ``Freedom of Information Act 
Request.'' Requests may be submitted by U.S. mail, delivery service, 
email, facsimile, or online at the FOIAonline Web site, http://
foiaonline.regulations.gov. Requests made by mail, delivery service, 
email, or facsimile should be sent to the Department component 
identified in Appendix A to this part that maintains those records 
requested, and should be sent to the addresses, email addresses, or 
numbers listed in Appendix A to this part or the Department's 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. 
Requests will be considered received for purposes of the 20-day time 
limit of Sec. 4.6 as of the date it is received by the proper 
component's FOIA office.
---------------------------------------------------------------------------

    \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, and any appeals 
thereof, should be sent directly to the USPTO.
---------------------------------------------------------------------------

    (b) Requests for records about an individual or oneself. For 
requests for records about oneself, Sec. 4.24 of this part contains 
additional requirements. For requests for records about another 
individual, either 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) will facilitate processing the request.
    (c) Description of records sought. A FOIA request must reasonably 
describe the agency records sought, to enable Department personnel to 
locate them with a reasonable amount of effort. Whenever possible, a 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record, and the name and location of the office where the record 
might be found. In addition, 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. As a 
general rule, the more specifically the request describes the records 
sought, the greater the likelihood that the Department will be able to 
locate those records. Before submitting their requests, requesters may 
contact the component's FOIA contact to discuss the records they are 
seeking and to receive assistance in describing the records (contact 
information for these individuals is contained in Appendix A to this 
part and on the Department's Web site, http://www.doc.gov). If a 
component determines that a request does not reasonably describe the 
records sought, 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. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component's designated 
FOIA contact. When a requester fails to provide sufficient detail within 
30 calendar days after having been asked to reasonably describe the 
records sought, the component shall notify the requester in writing that 
the request has not been properly made, that no further action will be 
taken, and that the FOIA request is closed. Such a notice constitutes an 
adverse determination under Sec. 4.7(d) for which components shall 
follow the procedures for a denial letter under Sec. 4.7(e). In cases 
where a requester has modified his or her request, the date of receipt 
for purposes of the 20-day time limit of Sec. 4.6 shall be the date of 
receipt of the modified request.

[79 FR 62558, Oct. 20, 2014, as amended at 79 FR 68609, Nov. 18, 2014]



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

[[Page 24]]

component that first receives the request and has responsive records (or 
in the instance of where no records exist, the component that first 
receives the request and is likely to have responsive records), or the 
component to which the Departmental FOIA Officer or component FOIA 
Officer assigns lead responsibility for responding to the request. Where 
a component's FOIA office determines that a request was misdirected 
within the Department, the receiving component's FOIA office shall route 
the request to the FOIA office of the proper component(s). 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. When a component receives a request 
for a record (or a portion thereof) in its possession that originated 
with another Federal agency subject to the FOIA, the component shall 
refer the record to that agency for direct response to the requester 
(see Sec. 4.8 for additional information about referrals of classified 
information). In instances where a record is requested that originated 
with the Department and another Federal agency has a significant 
interest in the record (or a portion thereof), the component shall 
consult with that Federal agency before responding to a requester. When 
a component receives a request for a record (or a portion thereof) in 
its possession that originated with another Federal agency that is not 
subject to the FOIA, the component shall consult with that Federal 
agency before responding to the requester.
    (c) Notice of referral. Whenever a component refers a record to 
another Federal agency for direct response to the requester, the 
component's FOIA Officer shall notify the requester in writing of the 
referral and inform the requester of the name of the agency to which the 
record 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; 79 
FR 62559, Oct. 20, 2014]



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. Unless the component and the 
requester have agreed otherwise, or when ``unusual circumstances'' exist 
as provided for in paragraph (d) of this section, a determination 
whether to comply with a FOIA request shall be made by components 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). In 
instances involving misdirected requests that are re-routed pursuant to 
Sec. 4.5(a), the response time shall commence on the date that the 
request is received by the proper component, but in any event not later 
than ten working days after the request is first received by any 
designated component. An administrative appeal, other than an appeal 
from a request made to the Office of the Inspector General, shall be 
decided within 20 working days of its receipt by the Office of the 
General Counsel. An administrative appeal from a request made to the 
Office of the Inspector General shall be decided within 20 working days 
of its receipt by the Office of the Inspector General Office of Counsel. 
The Department's failure to comply with the time limits identified in 
this paragraph constitutes exhaustion of the requester's administrative 
remedies for the purposes of judicial action to compel disclosure.
    (c) Clarification of request. Components may seek a one-time 
clarification of a request for records under this part. The component's 
request for clarification must be in writing. When a

[[Page 25]]

component seeks clarification of a request, the time for responding to a 
request set forth in Sec. 4.6(b) is tolled until the requester responds 
to the clarification request. The tolled period will end when the 
component that sought the clarification receives a response from the 
requester. If a component asks for clarification and does not receive a 
written response from the requester within 30 calendar days from the 
date of the component's clarification request, the component will 
presume that the requester is no longer interested and notify the 
requester that the request will be closed.
    (d) Unusual circumstances. (1) Components may extend the time period 
for processing a FOIA request only in ``unusual circumstances,'' as 
described in paragraph (d)(2) of this section, in which the component 
shall, before expiration of the twenty-day period to respond, notify the 
requester of the extension in writing of the unusual circumstances 
involved 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 with an opportunity to modify the 
request or agree to an alternative time period for processing the 
original or modified request.
    (2) For purposes of this section, unusual circumstances include:
    (i) The need to search for and collect the requested agency records 
from field facilities or other establishments that are 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 to consult with another Federal agency having a 
substantial interest in the determination of the FOIA request or among 
two or more components of the Department having substantial subject-
matter 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.
    (e) Multi-track processing. (1) A component must use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including the amount of pages involved, and whether the request 
qualifies for expedited processing as described in paragraph (f) of this 
section.
    (2) A component using multi-track 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, email, letter, or through the 
FOIAonline Web site, http://foiaonline.regulations.gov, whichever is the 
most efficient in each case.
    (f) 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

[[Page 26]]

example, a requester within the category described in paragraph 
(f)(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 primary 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 (f)(1)(iv) of this section must also establish a particular 
urgency to inform the public about the Government activity involved in 
the request--one that extends beyond the public's right to know about 
Government activity generally. The existence of numerous articles 
published on a given subject can be helpful to establishing the 
requirement that there be an ``urgency to inform'' the public on a 
topic. As a matter of administrative discretion, a component may waive 
the formal certification requirement.
    (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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62559, Oct. 20, 2014]



Sec. 4.7  Responses to requests.

    (a) Acknowledgment of requests. Upon receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall provide an assigned request number for further 
reference and, if necessary, confirm whether the requester is willing to 
pay fees.
    (b) Interim responses. If a request involves voluminous records or 
requires searches in multiple locations, to the extent feasible, a 
component shall provide the requester with interim responses consisting 
of fully releasable records.
    (c) 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 of such determination and disclose records to the requester 
promptly upon payment of any applicable fees. 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.
    (d) 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 and includes decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does not exist, cannot be located, or has 
previously been destroyed; or the requested record is not readily 
reproducible in the form or format sought by the requester. Adverse 
determinations also include denials involving fees or fee waiver matters 
or denials of requests for expedited processing.
    (e) Content of denial. The denial letter shall be signed by an 
official listed in Appendix B to this part (or a designee), and shall 
include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including any 
FOIA exemption(s) applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, by providing the number of pages or some other reasonable form 
of estimation. This estimate is not required if the volume is otherwise 
indicated by deletions marked on records that are 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 under Sec. 4.10, and 
a list of

[[Page 27]]

the requirements for filing an appeal set forth in Sec. 4.10(b).

[79 FR 62560, Oct. 20, 2014]



Sec. 4.8  Classified information.

    In processing a request for information classified under Executive 
Order 13526 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 exemption should be invoked. Appeals involving 
classified information shall be processed in accordance with 
Sec. 4.10(c).

[79 FR 62560, Oct. 20, 2014]



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 must use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under 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

[[Page 28]]

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 is exempt and will 
be withheld under a FOIA exemption, other than exemption (b)(4);
    (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, except that, in such a 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 notify the requester 
that the request is being processed under the provisions of this 
regulation and, as a consequence, there may be a delay in receiving a 
response. The notice to the requester will not include any of the 
specific information contained in the records being requested. Whenever 
a submitter files a lawsuit seeking to prevent the disclosure of 
business information, the component shall notify the requester of such 
action and, as a consequence, there may be further delay in receiving a 
response.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62561, Oct. 20, 2014]



Sec. 4.10  Appeals from initial determinations or untimely delays.

    (a)(1) If a request for records to a component other than the Office 
of Inspector General is initially denied in whole or in part, or has not 
been timely determined, or if a requester receives an adverse 
determination regarding any other matter listed under this subpart (as 
described in Sec. 4.7(c)), the requester may file an appeal. Appeals can 
be submitted in writing or electronically, as described in paragraph 
(b)(1) of this section. The appeal must be received by the Office of the 
General Counsel during normal business hours (8:30 a.m. to 5:00 p.m., 
Eastern Time, Monday through Friday) within 30 calendar days of the date 
of the written denial of the adverse determination or, if there has been 
no determination, an appeal may be submitted any time after the due 
date, including the last extension under Sec. 4.6(d), of the adverse 
determination. Written or electronic appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 30th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern Time, the next 
business day will be deemed timely. Appeals received after the 30-day 
limit will not be considered.
    (2) If a request for records to the Office of Inspector General is 
initially denied in whole or in part, or has not been timely determined, 
or if a requester receives an adverse determination regarding any other 
matter listed

[[Page 29]]

under this subpart (as described in Sec. 4.7(c)), the requester may file 
an appeal. Appeals can be submitted in writing or electronically, as 
described in paragraph (b)(2) of this section. The appeal must be 
received by the Office of Inspector General, Office of Counsel, during 
normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday 
through Friday) within 30 calendar days of the date of the written 
denial of the adverse determination or, if there has been no 
determination, an appeal may be submitted any time after the due date, 
including the last extension under Sec. 4.6(d), of the adverse 
determination. Written or electronic appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 30th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern Time, the next 
business day will be deemed timely. Appeals received after the 30-day 
limit will not be considered.
    (b)(1) Appeals, other than appeals from requests made to the Office 
of Inspector General, shall be decided by the Assistant General Counsel 
for Litigation, Employment, and Oversight. Written appeals should be 
addressed to the Assistant General Counsel for Litigation, Employment, 
and Oversight, at U.S. Department of Commerce, Office of the 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 Act Appeal.'' Appeals may also 
be submitted electronically either by email to [email protected] or 
online at the FOIAonline Web site, http://foiaonline.regulations.gov, if 
requesters have a FOIAonline account. In all cases, the appeal (written 
or electronic) should include a copy of the original request and initial 
denial, if any. All appeals should include a statement of the reasons 
why the records requested should be made available and why the adverse 
determination was in error. No opportunity for personal appearance, oral 
argument or hearing on appeal is provided. Upon receipt of an appeal, 
the Assistant General Counsel for Litigation, Employment, and Oversight 
ordinarily shall send an acknowledgement letter to the requester which 
shall confirm receipt of the requester's appeal.
    (2) Appeals of initial and untimely determinations by the Office of 
Inspector General shall be decided by the Counsel to the Inspector 
General, except that appeals for records which were initially denied by 
the Counsel to the Inspector General shall be decided by the Deputy 
Inspector General. Written appeals should be addressed to the Counsel to 
the Inspector General, or the Deputy Inspector General if the records 
were initially denied by the Counsel to the Inspector General. The 
address of both is: U.S. Department of Commerce, Office of Counsel, Room 
7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An appeal 
may also be sent via facsimile at 202-501-7335. For a written appeal, 
both the letter and the appeal envelope should be clearly marked 
``Freedom of Information Act Appeal.'' Appeals may also be submitted 
electronically either by email to [email protected] or online at the 
FOIAonline Web site, http://foiaonline.regulations.gov, if requesters 
have a FOIAonline account. In all cases, the appeal (written or 
electronic) should include a copy of the original request and initial 
denial, if any. All appeals should include a statement of the reasons 
why the records requested should be made available and why the adverse 
determination was in error. No opportunity for personal appearance, oral 
argument or hearing on appeal is provided. Upon receipt of an appeal, 
the Counsel to the Inspector General, or the Deputy Inspector General if 
the records were initially denied by the Counsel to the Inspector 
General, ordinarily shall send an acknowledgement letter to the 
requester which shall confirm receipt of the requester's appeal.
    (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

[[Page 30]]

national security is no longer required, or no longer required at the 
same level. The DAS shall advise the Assistant General Counsel for 
Litigation, Employment, and Oversight, the General Counsel, the General 
Counsel to the Inspector General, or Deputy Inspector General, 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; 
79 FR 62561, Oct. 20, 2014; 80 FR 70153, Nov. 13, 2015]



Sec. 4.11  Fees.

    (a) In general. Components shall charge fees for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section or when a 
waiver or reduction is granted under paragraph (k) of this section. A 
component shall collect all applicable fees before processing a request 
if a component determines that advance payment is required in accordance 
with paragraphs (i)(2) and (i)(3) of this section. If advance payment of 
fees is not required, 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 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay for the employee, plus 16% of that rate to cover 
benefits) and the cost of operating computers and other electronic 
equipment, such as photocopiers and scanners. Direct costs do not 
include 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, among others. A component shall honor a requester's 
specified preference of form

[[Page 31]]

or format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format.
    (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. A requester in this fee 
category must show that the request is authorized by, and is made under 
the auspices of, an educational institution and that the records are not 
sought for a commercial use, but rather are sought to further scholarly 
research. To fall within this fee category, a request must serve the 
scholarly research goal of the institution rather than an individual 
research goal.
    Example 1. A request from a professor of geology at a university for 
records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking drug 
information from the Food and Drug Administration in furtherance of a 
murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional letterhead.
    Example 3. A student who makes a request in furtherance of the 
completion of a course of instruction would be presumed to be carrying 
out an individual research goal, rather than a scholarly research goal 
of the institution, and would not qualify as part of this fee category.
    (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 or entity organized and operated to publish or broadcast news 
to the public that actively gathers information of potential interest to 
a segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. 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 are television or radio stations broadcasting to the 
public at-large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public including news organizations that disseminate solely on 
the Internet. To be in this category, a requester must not be seeking 
the requested records for a commercial use. A request for records that 
supports the news-dissemination function of the requester shall not be 
considered to be for a commercial use. A freelance journalist shall be 
regarded as working for a news-media entity if the journalist can 
demonstrate a solid basis for expecting publication through that entity, 
whether or not the journalist is actually employed by the entity. 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. A component's decision to grant a requester media status 
will be made on a case-by-case basis based upon the requester's intended 
use of the material.
    (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. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting it and marking any 
applicable exemptions. Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent obtaining 
and considering any formal objection to disclosure made by a business 
submitter under Sec. 4.9, but does not include

[[Page 32]]

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
                                          conducting review, plus 16
                                          percent of salary rate.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time.
(iii) Review of records................  Actual salary rate of employee
                                          involved, plus 16 percent of
                                          salary rate.
(iv) Duplication of records:
    (A) Paper copy reproduction........  $.08 per page.
    (B) Other reproduction (e.g.,        Actual direct cost, including
     converting paper into an             operator time.
     electronic format (e.g.,
     scanning), computer disk or
     printout, or other electronically-
     formatted reproduction (e.g.,
     uploading records made available
     to the requester into FOIAonline)).
------------------------------------------------------------------------

    (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. These direct costs will include the 
costs of the operator/programmer salary apportionable to the search and 
any other tangible direct costs associated with a computer search.
    (4) Duplication. Duplication fees shall be charged to all 
requesters, subject to the limitations of paragraph (d) of this section. 
A component shall honor a requester's preference for receiving a record 
in a particular form or format where it is readily producible by the 
component in the form or format requested. For either a photocopy or a 
computer-generated printout of a record (no more than one copy of which 
need be supplied), the fee shall be $.08 per page. Requesters may reduce 
costs

[[Page 33]]

by specifying double-sided duplication, except where this is technically 
not feasible. For electronic forms of duplication, other than a 
computer-generated printout, components will charge the direct costs of 
that duplication. Such direct costs will include the costs of the 
requested electronic medium on which the copy is to be made and the 
actual operator time and computer resource usage required to produce the 
copy, to the extent they can be determined.
    (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 fees shall be 
charged for requests from educational institutions, non-commercial 
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.
    (6) No search fees shall be charged to a FOIA requester when a 
component does not comply with the statutory time limits at 5 U.S.C. 
552(a)(6) in which to respond to a request, unless unusual or 
exceptional circumstances (as those terms are defined by the FOIA) apply 
to the processing of the request.
    (7) No duplication fees shall be charged to requesters in the fee 
category of a representative of the news media or an educational or 
noncommercial scientific institution when a component does not comply 
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond 
to a request, unless unusual or exceptional circumstances (as those 
terms are defined by the FOIA) apply to the processing of the request.
    (e) Notice of anticipated fees in excess of $20.00. (1) When a 
component determines or estimates that the fees for processing a FOIA 
request will total more than $20.00 or total more than the amount the 
requester indicated a willingness to pay, the component shall notify the 
requester of the actual or estimated amount of the fees, unless the 
requester has stated in writing a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester that the estimated fee 
may be only a portion of the total fee. A notice under this paragraph 
shall offer the requester an opportunity to discuss the matter with 
Departmental personnel in order to modify the request in an effort to 
meet the requester's needs at a lower cost.
    (2) When a requester has been notified that the actual or estimated 
fees will amount to more than $20.00, or amount to more than the amount 
the requester indicated a willingness to pay, the component will do no 
further work on the request until the requester agrees in writing to pay 
the actual or estimated total fee. The component will toll the 
processing of the request while it notifies the requester of the actual 
or estimated amount of fees and this time will be excluded from the

[[Page 34]]

twenty (20) working day time limit (as specified in Sec. 4.6(b)). The 
requester's agreement to pay fees must be made in writing, must 
designate an exact dollar amount the requester is willing to pay, and 
must be received within 30 calendar days from the date of the 
notification of the fee estimate. If the requester fails to submit an 
agreement to pay the anticipated fees within 30 calendar days from the 
date of the component's fee notice, the component will presume that the 
requester is no longer interested and notify the requester that the 
request will be closed.
    (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 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 (i.e., a payment made before a 
component begins to process or continues work on a request). Payment 
owed for work already completed (i.e., a pre-payment before copies of 
responsive records are sent to a requester) is not an advance payment.
    (2) When a component determines or estimates that the total fee for 
processing a FOIA request will be $250.00 or more, the component shall 
notify the requester of the actual or estimated fee and require the 
requester to make an advance payment of the entire anticipated fee 
before beginning to process the request. A notice under this paragraph 
shall offer the requester an opportunity to discuss the matter with 
Departmental personnel in order to modify the request in an effort to 
meet the requester's needs at a lower cost.
    (3) When 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, the component shall notify the requester 
that he or she is required 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. A 
notice under this paragraph shall offer the requester an opportunity to 
discuss the matter with Departmental personnel in order to modify the 
request in an effort to meet the requester's needs at a lower cost.
    (4) When the component requires advance payment or payment due under 
paragraphs (i)(2) and (i)(3) of this section, the component will not 
further process the request until the required payment is made. The 
component will

[[Page 35]]

toll the processing of the request while it notifies the requester of 
the advanced payment due and this time will be excluded from the twenty 
(20) working day time limit (as specified in Sec. 4.6(b)). If the 
requester does not pay the advance payment within 30 calendar days from 
the date of the component's fee notice, the component will presume that 
the requester is no longer interested and notify the requester that the 
request will be closed.
    (j) Tolling. When necessary for the component to clarify issues 
regarding fee assessment with the FOIA requester, the time limit for 
responding to the FOIA request is tolled until the component resolves 
such issues with the requester.
    (k) 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.
    (l) 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 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

[[Page 36]]

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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62562, Oct. 20, 2014]



                          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 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

[[Page 37]]

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, 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

[[Page 38]]

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 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 Litigation, 
Employment, and Oversight 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.

[[Page 39]]

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,
    (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

[[Page 40]]

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.
    (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 Litigation, 
Employment, and Oversight 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.

[[Page 41]]

    (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 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 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

[[Page 42]]

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 Litigation, Employment, and Oversight, 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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]



Sec. 4.26  Special procedures: Medical records.

    When a request for access involves medical or psychological records, 
the records will be reviewed by the Department's medical officer for a 
determination on whether disclosure would be harmful to the individual 
to whom they relate. If it is determined that disclosure would be 
harmful, the Department may refuse to disclose the records directly to 
the requester but shall transmit them to a doctor authorized in writing 
by the individual to whom the records relate to receive the documents. 
If an individual refuses to provide written authorization to release his 
or her medical records to a doctor, barring any applicable exemption, 
the Department shall give the individual access to his or her records by 
means of a copy, provided without cost to the requester, sent registered 
mail, return receipt requested.

[79 FR 62564, Oct. 20, 2014]



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

[[Page 43]]

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.



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 Litigation, 
Employment, and Oversight, or in the case of a request to the Office of 
the Inspector General, the Counsel to the Inspector General, 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, 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 
Litigation, Employment, and Oversight, or in the case of a request to 
the Office of the Inspector General, the address of the Counsel to the 
Inspector General.
    (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.

[[Page 44]]

    (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.
    (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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]



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 calendar days of the date of the initial denial. The appeal must 
be received by the General Counsel, or by the Counsel to the Inspector 
General in the case of an appeal of an initial adverse determination by 
the Office of Inspector General, during normal business hours (8:30 a.m. 
to 5:00 p.m., Eastern Time, Monday through Friday) within 30 calendar 
days of the date of the initial denial. Appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 30th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern Time, the next 
business day will be deemed timely.
    (b)(1) An appeal from a request to a component other than the Office 
of the Inspector General should be addressed to the Assistant General 
Counsel for Litigation, Employment, and Oversight, U.S. Department of 
Commerce,

[[Page 45]]

Room 5875, 14th and Constitution Avenue NW., Washington, DC 20230. An 
appeal should include the words ``Privacy Act Appeal'' 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 Litigation, Employment, and Oversight. 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 
Litigation, Employment, and Oversight. In each instance when an appeal 
so forwarded is received, the Assistant General Counsel for Litigation, 
Employment, and Oversight 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.
    (2) An appeal of an initial adverse determination on correction or 
amendment by the Office of Inspector General should be addressed to the 
Counsel to the Inspector General, U.S. Department of Commerce, Room 
7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An appeal 
should include the words ``Privacy Act Appeal'' 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 Counsel to the 
Inspector General. 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 
Counsel to the Inspector General. In each instance when an appeal so 
forwarded is received, the Counsel to the Inspector General 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 for why the initial denial is 
believed to be in error, and the Department's control number assigned to 
the request. The Privacy Act Officer who issued the initial denial shall 
furnish to the Assistant General Counsel for Litigation, Employment, and 
Oversight, or in the case of an initial denial by the Office of the 
Inspector General, to the Counsel to the Inspector General, the 
record(s) 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 Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, 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 Litigation, Employment, and 
Oversight, or in the case of an initial denial by the Office of the 
Inspector General, the Counsel to the Inspector General, 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 Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, may extend the thirty days upon 
deciding that a fair and equitable review cannot be made within that 
period, but only if the individual is advised in writing of the reason 
for the extension and the estimated date by which a final determination 
will be issued. The estimated date should not be later than the sixtieth 
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

[[Page 46]]

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 shall inform the individual 
that:
    (1) The individual has a right under the Act to file with the 
Assistant General Counsel for Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, 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 Litigation, Employment, and Oversight, or in the 
case of an initial denial by the Office of the Inspector General, the 
Counsel to the Inspector General, 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 Litigation, Employment, and Oversight, or in the case of an initial 
denial by the Office of the Inspector General, the Counsel to the 
Inspector General, shall employ the criteria set forth in Sec. 4.28(c) 
and shall deny an appeal only on grounds set forth in Sec. 4.28(e).
    (i) If an appeal is partially granted and partially denied, the 
Assistant General Counsel for Litigation, Employment, and Oversight, or 
in the case of an initial denial by the Office of the Inspector General, 
the Counsel to the Inspector General, 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).

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]



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.

---------------------------------------------------------------------------

[[Page 47]]

    (i) To those officers and employees of the agency that maintains the 
record 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.

[[Page 48]]

    (c) As required by the United States Office of Personnel Management 
in its 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/BIS-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 49]]

    (4) Access Control and Identity Management System--COMMERCE/DEPT-25. 
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.

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014; 
80 FR 68443, Nov. 5, 2015]



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/BIS-1, COMMERCE/
ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, COMMERCE-PAT-TM-4, COMMERCE/
DEPT-12, COMMERCE/DEPT-13, COMMERCE/DEPT-14, and COMMERCE/DEPT-25.
    (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/BIS-1, COMMERCE/NOAA-5, and 
COMMERCE/DEPT-25 under this paragraph are subject to the condition that 
the general exemption claimed in Sec. 4.33(b) 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/BIS-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-5, 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) Access Control and Identity Management System--COMMERCE/DEPT-25, 
but only on condition that the general exemption claimed in 
Sec. 4.33(b)(4) is held to be invalid;
    (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

[[Page 50]]

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) Special Censuses, Surveys, and Other Studies--COMMECE/CENSUS-3;
    (B) Economic Survey Collection--COMMERCE/CENSUS-4;
    (C) Decennial Census Program--COMMERCE/CENSUS-5;
    (D) Population Census Records for 1910 & All Subsequent Decennial 
Census--COMMERCE/CENSUS-6;
    (E) Other Agency Surveys & Reimbursable--COMMERCE/CENSUS-7;
    (F) Statistical Administrative Records System--COMMERCE/CENSUS-8;
    (G) Longitudinal Employer-Household Dynamics System--COMMERCE/
CENSUS-9; and
    (H) Foreign Trade Statistics--COMMERCE/CENSUS-12.
    (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-1;
    (F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
3;
    (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;
    (J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14; and
    (K) Access Control and Identity Management System--COMMERCE/DEPT-25, 
but only on condition that the general exemption claimed in 
Sec. 4.33(b)(4) is held to be invalid.
    (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).

[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014; 
80 FR 68443, Nov. 5, 2015]

[[Page 51]]



  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 Departmental FOIA Office identified 
in paragraph (1) of this appendix. The telephone and facsimile numbers 
for each component are included after its address, as well as email 
addresses for components that maintain an email address for the purposes 
of receiving of FOIA and Privacy Act requests. Records of components 
that are required to be made publicly available are available 
electronically either through the Department's ``Electronic FOIA 
Library'' on the Department's Web site, http://www.doc.gov, as described 
in Sec. 4.2(a), or the component's separate online Electronic FOIA 
Library as indicated below. Components that maintain a public inspection 
facility are designated as such below. These public inspection 
facilities records are open to the public Monday through Friday (i.e., 
excluding Saturdays, Sundays, and legal public holidays) between 9:00 
a.m. and 4:00 p.m. local time of the facility at issue. The Departmental 
Freedom of Information Act Officer is authorized to revise this appendix 
to reflect changes in the information contained in it. Any such 
revisions shall be posted on the Department's ``FOIA Home Page'' link 
found at the Department's Web site, http://www.doc.gov.
    (1) U.S. Department of Commerce, Office of Privacy and Open 
Government, Departmental FOIA Office, 14th and Constitution Avenue NW., 
Mail Stop A300, Washington, DC 20230; Phone: (202) 482-3258; Fax: (202) 
482-0827; Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains an online 
Electronic FOIA Library through the Department's Web site, http://
www.doc.gov. This online Electronic FOIA Library 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 
online Electronic FOIA Libraries.
    (2) Bureau of the Census, Policy Coordination Office, U.S. 
Department of Commerce, Room 8H027, 4600 Silver Hill Road, Suitland, 
Maryland 20233; Ph.: (301) 763-6440; Fax: (301) 763-6239 (ATTN.: FOIA 
Office); Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains a separate online 
Electronic FOIA Library through its Web site, http://www.census.gov.
    (3) Bureau of Economic Analysis/Economic and Statistics 
Administration, Office of the Under Secretary for Economic Affairs, U.S. 
Department of Commerce, 14th and Constitution Avenue NW., Mail Stop 
H4836, Washington, DC 20230; Ph.: (202) 482-5997; Fax: (202) 482-2889; 
Email: [email protected]; FOIAonline: http://foiaonline.regulations.gov. 
This component maintains a separate online Electronic FOIA Library 
through its Web site, http://www.esa.doc.gov.
    (4) Bureau of Industry and Security, Office of Administration, U.S. 
Department of Commerce, 14th and Constitution Avenue NW., Mails Stop 
H6622, Washington, DC 20230; Ph.: (202) 482-0953; Fax: (202) 482-0326; 
Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains a separate online 
Electronic FOIA Library through its Web site, http://www.bis.doc.gov.
    (5) Economic Development Administration, Office of the Chief 
Counsel, U.S. Department of Commerce, 14th and Constitution Avenue NW., 
Room 7325, Washington, DC 20230; Ph.: (202) 482-3085; Fax: (202) 482-
5671; FOIAonline: http://foiaonline.regulations.gov. This component does 
not maintain a separate online Electronic FOIA Library, nor do any of 
the following Regional EDA offices.
    (i) Atlanta Regional Office, EDA, U.S. Department of Commerce, 401 
West Peachtree Street NW., Suite 1820, Atlanta, Georgia 30308; Ph.: 
(404) 730-3006.
    (ii) Austin Regional Office, EDA, U.S. Department of Commerce, 504 
Lavaca Street, Suite 1100, Austin, Texas 78701; Ph.: (512) 381-8165.
    (iii) Chicago Regional Office, EDA, U.S. Department of Commerce, 111 
North Canal Street, Suite 855, Chicago, Illinois 60606; Ph.: (312) 353-
8143.
    (iv) Denver Regional Office, EDA, U.S. Department of Commerce, 410 
17th Street, Suite 250, Denver, Colorado 80202; Ph.: (303) 844-4404.
    (v) Philadelphia Regional Office, EDA, U.S. Department of Commerce, 
Curtis Center, Suite 140 South, 601 Walnut Street, Philadelphia, 
Pennsylvania 19106; Ph.: (215) 597-7896.
    (vi) Seattle Regional Office, EDA, U.S. Department of Commerce, 
Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, 
Washington 98174; Ph.: (206) 220-7663.
    (6) International Trade Administration, Office of Strategic 
Resources, U.S. Department of Commerce, 14th and Constitution Avenue

[[Page 52]]

NW., Room 40003, Washington, DC 20230; Ph.: (202) 482-7937; Fax: (202) 
482-1584; Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component does not maintain a separate 
online Electronic FOIA Library.
    (7) Minority Business Development Agency, Office of Administration 
and Employee Support Services, U.S. Department of Commerce, 14th and 
Constitution Avenue NW., Room 5092, Washington, DC 20230; Ph.: (202) 
482-2419; Fax: (202) 482-2500; Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains a separate online 
Electronic FOIA Library through its Web site, http://www.mbda.gov.
    (8) National Institute of Standards and Technology, Management and 
Organization Office, U.S. Department of Commerce, 100 Bureau Drive, Mail 
Stop 1710, Gaithersburg, Maryland 20899-1710; Ph.: (301) 975-4054; Fax: 
(301) 975-5301; Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains a separate public 
inspection facility at the Administration Building, Gaithersburg, 
Maryland. Please call (301) 975-4054 for inspection facility directions 
and hours. This component does not maintain a separate online Electronic 
FOIA Library.
    (9) National Oceanic and Atmospheric Administration, U.S. Department 
of Commerce, 1315 East-West Highway (SSMC3), Room 9719, Silver Spring, 
Maryland 20910; Ph.: (301) 628-5658; Fax: (301) 713-1169; Email: 
[email protected]; FOIAonline: http://foiaonline.regulations.gov. This 
component maintains a separate online Electronic FOIA Library through 
its Web site, http://www.noaa.gov.
    (10) National Technical Information Service, Office of the Chief 
Information Officer, U.S. Department of Commerce, 5301 Shawnee Road, 
Room 227, Alexandria, Virginia 22312; Ph.: (703) 605-6710; Fax: (703) 
605-6764; FOIAonline: http://foiaonline.regulations.gov. This component 
maintains a separate online Electronic FOIA Library through its Web 
site, http://www.ntis.gov.
    (11) National Telecommunications and Information Administration, 
Office of the Chief Counsel, U.S. Department of Commerce, 14th and 
Constitution Avenue NW., Mail Stop 4713, Washington, DC 20230; Ph.: 
(202) 482-1816; Fax: (202) 501-8013; Email: [email protected]; 
FOIAonline: http://foiaonline.regulations.gov. This component does not 
maintain a separate online Electronic FOIA Library.
    (12) Office of Inspector General, FOIA and Records Management 
Specialist, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Room 7099C, Washington, DC 20230; Ph.: (202) 482-3470; Fax: (202) 
501-7921; Email: [email protected]; FOIAonline: http://
foiaonline.regulations.gov. This component maintains a separate online 
Electronic FOIA Library through its Web site, http://www.oig.doc.gov.

[79 FR 62566, Oct. 20, 2014]



  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 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. 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 on the Department's 
``FOIA Home Page'' link found at the Department's Web site, http://
www.doc.gov.
---------------------------------------------------------------------------

    \1\ The foregoing officials have sole authority under Sec. 4.7(c) 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 Inspector General: Freedom of Information Act Officer
Office of the General Counsel: Deputy General Counsel; Assistant General 
Counsel for Litigation, Employment, and Oversight
Office of Executive Support: Director
Office of Chief Information Officer: Director

                 ASSISTANT SECRETARY FOR ADMINISTRATION

Office of Civil Rights: Director

[[Page 53]]

Office of Budget: Director
Office of Privacy and Open Government: Director Departmental Freedom of 
Information Officer
Office of Program Evaluation and Risk Management: Director
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director
Office of Administrative Services: Director
Office of Security: Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director

                     BUREAU OF INDUSTRY AND SECURITY

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 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

                        Executive Administration

Under Secretary for International Trade
Deputy Under Secretary for International Trade
Chief Counsel for International Trade
Chief Counsel for Enforcement and Compliance
Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
Chief Information Officer
Deputy Chief Information Officer
Chief Administrative Officer, Office of the Chief Information Officer
Chief Financial and Administration Officer
Deputy Chief Financial Administrative Officer
Director, Budget Division
Director, Financial Management and Administrative Oversight Division
Director, Business Operations and Policy Compliance Division
Director, Performance Management and Employee Programs Division
Freedom of Information Act Officer

                       Enforcement and Compliance

Assistant Secretary for Enforcement and Compliance
Deputy Assistant Secretary for Enforcement and Compliance
Director, Office of Foreign Trade Zones Staff
Director, Office of Operations Support
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations
Executive Director, Antidumping and Countervailing Duty Operations
Director, Office of Antidumping and Countervailing Duty Enforcement I
Director, Office of Antidumping and Countervailing Duty Enforcement II
Director, Office of Antidumping and Countervailing Duty Enforcement III
Director, Office of Antidumping and Countervailing Duty Enforcement IV
Director, Office of Antidumping and Countervailing Duty Enforcement V
Director, Office of Antidumping and Countervailing Duty Enforcement VI
Director, Office of Antidumping and Countervailing Duty Enforcement VII
Deputy Assistant Secretary for Policy & Negotiations
Director, Office of Trade Agreements Negotiations and Compliance
Director, Office of Accounting
Director, Office of Policy

                             Global Markets

Assistant Secretary of Global Markets and Director General for the 
US&FCS
Deputy Director General
Principal Deputy Assistant Secretary
Executive Director, Advocacy Center
Director, Business Information and Technology Office
Director, Global Knowledge Center
Director, Office of Budget
Director, Office of Foreign Service Human Capital
Director, Office of Strategic Planning
Director, Office of Administrative Services
Executive Director, SelectUSA
Deputy Assistant Secretary for U.S. Field
National U.S. Field Director
Deputy Assistant Secretary for Asia
Executive Director for Asia
Director, Office of the ASEAN and Pacific Basin

[[Page 54]]

Director, Office of East Asia and APEC
Director, Office of South Asia
Deputy Assistant Secretary for China, Hong Kong, and Mongolia
Executive Director for China, Hong Kong, and Mongolia
Director, Office of China, Hong Kong, and Mongolia
Deputy Assistant Secretary for Western Hemispheres
Executive Director for Western Hemispheres
Director, Office of North and Central America
Director, Office of South America
Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Director for Europe and Eurasia
Director, Office of Europe Country Affairs
Director, Office of the European Union
Director, Office of Russia, Ukraine, and Eurasia
Executive Director for Africa and Middle East
Director, Office of the Middle East and North Africa
Director, Office of Sub-Saharan Africa

                          Industry and Analysis

Assistant Secretary for Industry and Analysis
Deputy Assistant Secretary for Industry and Analysis
Trade Agreements Secretariat
Executive Director, Office of Trade Programs and Strategic Partnerships
Director, Trade Promotion Programs
Director, Strategic Partnerships
Director, Office of Advisory Committees and Industry Outreach
Director, Office of Planning, Coordination and Management
Deputy Assistant Secretary for Services
Director, Office of Financial and Insurance Industries
Director, Office of Digital Service Industries
Director, Office of Supply Chain, Professional and Business Services
Executive Director for National Travel and Tourism Office
Director, Office of Travel and Tourism Industries
Deputy Assistant Secretary for Trade Policy and Analysis
Director, Office of Standards and Investment Policy
Director, Office of Trade and Economic Analysis
Director, Office of Trade Negotiations and Analysis
Director, Office of Intellectual Property Rights
Deputy Assistant Secretary for Manufacturing
Director, Office of Energy and Environmental Industries
Director, Office of Transportation and Machinery
Director, Office of Health and Information Technologies
Deputy Assistant Secretary for Textiles, Consumer Goods, and Materials
Director, Office of Textiles and Appeal
Director, Office of Materials
Director, Office of Consumer Goods

                  MINORITY BUSINESS DEVELOPMENT AGENCY

Chief Counsel
Freedom of Information Officer

              NATIONAL INSTITUTE OF STANDARDS AND TECNOLOGY

Chief, Management and Organization Office
NIST Counsel

             NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Under Secretary
Deputy Under Secretary for Operations
Chief, Resource and Operations Management
Director, Office of Communications and External Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Deputy General Counsel
Assistant Administrator for National Ocean Services
Deputy Assistant Administrator for National Ocean Services
Assistant Administrator for National Marine Fisheries Service
Deputy Assistant Administrator for Operations for National Marine 
Fisheries Service
Deputy Assistant Administrator for Regulatory Programs for National 
Marine Fisheries Service
Assistant Administrator for National Weather Services
Deputy Assistant Administrator for National Weather Services
Assistant Administrator for National Environmental Satellite, Data, and 
Information Service
Deputy Assistant Administrator for National Environmental Satellite, 
Data, and Information Service
Assistant Administrator for Oceanic and Atmospheric Research
Deputy Assistant Administrator for Programs & Administration (Oceanic 
and Atmospheric Research)
Assistant Administrator for Program, Planning and Integration
Chief Administrative Officer
Chief Financial Officer
Chief Information Officer
Director, Acquisition and Grants Office
Deputy Director, Acquisition and Grants Office

[[Page 55]]

Head of Contracting Offices, Acquisition and Grants Office
Director, Workforce Management Office
Senior Advisor for International Affairs
Director, Office of Legislation & Intergovernmental Affairs
Freedom of Information Officer

                 NATIONAL TECHNICAL INFORMATION SERVICE

Director
Deputy Director
Chief Financial Officer/Associate Director for Finance and 
Administration

       NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel

[79 FR 62567, Oct. 20, 2014]

   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 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.

[[Page 56]]



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 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.

[[Page 57]]

    (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.
    (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;

[[Page 58]]

    (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 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.

[[Page 59]]

    (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 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.

[[Page 60]]

    (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 ADJUSTMENTS FOR INFLATION--
Table of Contents



Sec.
6.1  Definitions.
6.2  Purpose and scope.
6.3  Limitation on initial catch up adjustments for inflation.
6.4  Adjustments for inflation.
6.5  Effective date of adjustments for inflation.
6.6  Subsequent adjustments for inflation.

    Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); 
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of Pub. 
L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 note).

    Source: 81 FR 36456, June 7, 2016, unless otherwise noted.



Sec. 6.1  Definitions.

    (a) Commerce Department means the United States Department of 
Commerce.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1) Is for a specific monetary amount as provided by Federal law, or 
has a maximum amount provided for by Federal law; and
    (2) Is assessed or enforced by an agency pursuant to Federal law; 
and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal courts.



Sec. 6.2  Purpose and scope.

    The purpose of this part is to make adjustments for inflation to 
civil monetary penalties, as required by the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) 
and the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (Section 701 of Pub. L. 114-74), of each civil monetary 
penalty provided by law within the jurisdiction of the United States 
Department of Commerce (Commerce Department).



Sec. 6.3  Limitation on initial catch up adjustments for inflation.

    The initial catch up adjustment for inflation to a civil monetary 
penalty shall not exceed 150 percent of the amount of that civil 
monetary penalty that was in effect as of November 2, 2015.



Sec. 6.4  Adjustments for inflation.

    The civil monetary penalties provided by law within the jurisdiction 
of Commerce Department, as set forth in paragraphs (a) through (f) of 
this section, are hereby adjusted for inflation in accordance with the 
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, 
from the amount of such civil monetary penalties that was in effect as 
of November 2, 2015, to the amounts of such civil monetary penalties, as 
thus adjusted. The year stated in parenthesis represents the year that 
the civil monetary penalty was last set by law or adjusted by law 
(excluding adjustments for inflation).

[[Page 61]]

    (a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1), 
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum from 
$5,500 to $10,781.
    (2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986 
(1986; newly reported penalty), violation, maximum $10,781.
    (3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation, 
minimum from $5,500 to $10,781; maximum from $11,000 to $21,563.
    (b) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act (1990), violation, maximum from $32,500 to $44,539.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $25,000 to $36,256.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $5,000 to $7,251.
    (4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act 
(2007), violation, maximum $284,582.
    (5) 22 U.S.C. 8142(a), United States Additional Protocol 
Implementation Act (2006), violation, maximum from $27,500 to $29,464.
    (c) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade 
Statistics (2002), each day's delinquency of a violation; total of not 
to exceed maximum violation, from $1,000 to $1,312; maximum per 
violation, from $10,000 to $13,118.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics (2002), 
violation, maximum from $10,000 to $13,118.
    (d) Economics and Statistics Administration. (1) 22 U.S.C. 3105(a), 
International Investment and Trade in Services Act (1990); failure to 
furnish information, minimum from $2,500 to $4,454; maximum from $32,500 
to $44,539.
    (e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign 
Trade Zone (1934), violation, maximum from $1,100 to $2,750.
    (2) 19 U.S.C. 1677f(f)(4), U.S.-Canada FTA Protective Order (1988), 
violation, maximum from $130,000 to $197,869.
    (f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C. 
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation, 
maximum from $10,000 to $10,874.
    (2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010 
(2010), violation, maximum from $10,000 to $10,874.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
violation, maximum from $200,000 to $227,666.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $650 
to $1,625.
    (5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950 
(1962):
    (i) Violation of 16 U.S.C. 957(a), maximum from $32,500 to $81,250.
    (ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $70,000 
to $175,000.
    (iii) Violation of 16 U.S.C. 957(b), maximum from $1,100 to $2,750.
    (iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $6,500 
to $16,250.
    (v) Violation of 16 U.S.C. 957(c), maximum from $140,000 to 
$350,000.
    (6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950 \1\ (new 
penalty), violation, maximum $178,156.
---------------------------------------------------------------------------

    \1\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty, as prescribed by law, is the maximum civil 
penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act civil monetary penalty (item (15)).
---------------------------------------------------------------------------

    (7) 16 U.S.C. 959, Tuna Conventions Act of 1950 \2\ (new penalty), 
violation, maximum $178,156.
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\ 
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \3\ See footnote 1.
---------------------------------------------------------------------------

    (9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988), 
violation, maximum from $350,000 to $494,672.
    (10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983), 
violation, maximum from $11,000 to $23,548.
    (11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1972), violation, maximum from $11,000 to $27,500.
    (12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information 
Act,\4\ violation, maximum from $130,000 to $178,156.
---------------------------------------------------------------------------

    \4\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty was revised by law in 2015 to be the maximum 
civil penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery 
Conservation and Management Act civil monetary penalty (item (15)).

---------------------------------------------------------------------------

[[Page 62]]

    (13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
violation, maximum from $140,000 to $167,728.
    (14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Violation as specified (1988), maximum from $32,500 to $49,467.
    (ii) Violation as specified (1988), maximum from $13,200 to $23,744.
    (iii) Otherwise violation (1978), maximum from $650 to $1,625.
    (15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation, maximum from $140,000 to $178,156.
    (16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources Convention 
Act of 1984,\5\ violation, maximum from $6,500 to $178,156.
---------------------------------------------------------------------------

    \5\ See footnote 4.
---------------------------------------------------------------------------

    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\ 
violation, maximum from $6,500 to $178,156.
---------------------------------------------------------------------------

    \6\ See footnote 4.
---------------------------------------------------------------------------

    (18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
    (i) 16 U.S.C. 3373(a)(1), violation, maximum from $11,000 to 
$25,464.
    (ii) 16 U.S.C. 3373(a)(2), violation, maximum from $275 to $637.
    (19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 
1982,\7\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \7\ See footnote 1.
---------------------------------------------------------------------------

    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\ 
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \8\ See footnote 1.
---------------------------------------------------------------------------

    (21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986 
(1986); violation, minimum from $500 to $1,078; maximum from $6,500 to 
$10,781.
    (22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 1992,\9\ 
violation, maximum from $130,000 to $178,156.
---------------------------------------------------------------------------

    \9\ See footnote 4.
---------------------------------------------------------------------------

    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act,\10\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \10\ See footnote 1.
---------------------------------------------------------------------------

    (24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation 
Act,\11\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \11\ See footnote 1.
---------------------------------------------------------------------------

    (25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995 
(1995), violation, maximum from $130,000 to $154,742.
    (26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995,\12\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \12\ See footnote 1.
---------------------------------------------------------------------------

    (27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act,\13\ violation, maximum from $140,000 to 
$178,156.
---------------------------------------------------------------------------

    \13\ See footnote 1.
---------------------------------------------------------------------------

    (28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\ 
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------

    \14\ See footnote 1.
---------------------------------------------------------------------------

    (29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation, maximum from $11,000 to $27,500.
    (ii) Subsequent violation, maximum from $32,500 to $81,250.
    (30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation, maximum, from $32,500 to $70,117.
    (31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980 
(1980), violation, maximum from $32,500 to $70,117.
    (32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012 \15\ (new 
penalty), violation, maximum $178,156.
---------------------------------------------------------------------------

    \15\ See footnote 1.
---------------------------------------------------------------------------

    (33) 16 U.S.C. 7407(b)(1), Port State Measures Agreement Act of 2015 
\16\ (new penalty), violation, maximum $178,156.
---------------------------------------------------------------------------

    \16\ See footnote 1.
---------------------------------------------------------------------------

    (34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium 
Protection Act \17\ (new penalty), violation, maximum $178,156.
---------------------------------------------------------------------------

    \17\ See footnote 1.
---------------------------------------------------------------------------



Sec. 6.5  Effective date of adjustments for inflation.

    The adjustments for inflation made by Sec. 6.4, of the civil 
monetary penalties there specified, are effective on July 7, 2016, and 
said civil monetary penalties, as thus adjusted by the adjustments for 
inflation made by Sec. 6.4, apply only to those civil monetary 
penalties, including those whose associated violation predated such 
adjustment, which are

[[Page 63]]

assessed by Commerce Department after the effective date of the new 
civil monetary penalty level, and before the effective date of any 
future adjustments for inflation to civil monetary penalties thereto 
made subsequent to July 7, 2016 as provided in Sec. 6.6.



Sec. 6.6  Subsequent adjustments for inflation.

    The Secretary of Commerce or his or her designee by regulation shall 
make subsequent adjustments for inflation to Commerce Department's civil 
monetary penalties annually, which shall take effect not later than 
January 15, 2017, and for each year thereafter, notwithstanding section 
553 of title 5, United States Code.

    Effective Date Note: At 81 FR 95434, Dec. 28, 2016, part 6 was 
revised, effective Jan. 15, 2017. For the convenience of the user, the 
revised text is set forth as follows:



PART 6_CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION

Sec.
6.1  Definitions.
6.2  Purpose and scope.
6.3  2017 Adjustments for inflation to civil monetary penalties.
6.4  Effective date of 2017 adjustments for inflation to civil monetary 
          penalties.
6.5  Subsequent annual adjustments for inflation to civil monetary 
          penalties.

    Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); 
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of Pub. 
L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 note).



Sec. 6.1  Definitions.

    (a) The Department of Commerce means the United States Department of 
Commerce.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1) Is for a specific monetary amount as provided by Federal law, or 
has a maximum amount provided for by Federal law; and
    (2) Is assessed or enforced by an agency pursuant to Federal law; 
and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal courts.



Sec. 6.2  Purpose and scope.

    The purpose of this part is to make adjustments for inflation to 
civil monetary penalties, as required by the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) 
and the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (Section 701 of Pub. L. 114-74), of each civil monetary 
penalty provided by law within the jurisdiction of the United States 
Department of Commerce (Department of Commerce).



Sec. 6.3  Adjustments for inflation to civil monetary penalties.

    The civil monetary penalties provided by law within the jurisdiction 
of the Department of Commerce, as set forth in paragraphs (a) through 
(f) of this section, are hereby adjusted for inflation in 2017 in 
accordance with the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended, from the amounts of such civil monetary penalties that 
were in effect as of July 7, 2016, to the amounts of such civil monetary 
penalties, as thus adjusted. The year stated in parenthesis represents 
the year that the civil monetary penalty was last set by law or adjusted 
by law (excluding adjustments for inflation).
    (a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1), 
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum from 
$10,781 to $10,957.
    (2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986 
(1986), violation, maximum from $10,781 to $10,957.
    (3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation, 
minimum from $10,781 to $10,957; maximum from $21,563 to $21,916.
    (b) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act (1990), violation, maximum from $44,539 to $45,268.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $36,256 to $36,849.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $7,251 to $7,370.
    (4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act 
(2007), violation, maximum from $284,582 to $289,238.
    (5) 22 U.S.C. 8142(a), United States Additional Protocol 
Implementation Act (2006), violation, maximum from $29,464 to $29,946.
    (c) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade 
Statistics (2002), each day's delinquency of a violation; total of not 
to exceed maximum violation, from $1,312 to $1,333; maximum per 
violation, from $13,118 to $13,333.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics (2002), 
violation, maximum from $13,118 to $13,333.
    (d) Economics and Statistics Administration. (1) 22 U.S.C. 3105(a), 
International Investment and Trade in Services Act (1990); failure to 
furnish information, minimum from $4,454 to $4,527; maximum from $44,539 
to $45,268.
    (e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign 
Trade Zone (1934), violation, maximum from $2,750 to $2,795.

[[Page 64]]

    (2) 19 U.S.C. 1677f(f)(4), U.S.-Canada FTA Protective Order (1988), 
violation, maximum from $197,869 to $201,106.
    (f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C. 
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation, 
maximum from $10,874 to $11,052.
    (2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010 
(2010), violation, maximum from $10,874 to $11,052.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
violation, maximum from $227,666 to $231,391.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $1,625 
to $1,652.
    (5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950 
(1962):
    (i) Violation of 16 U.S.C. 957(a), maximum from $81,250 to $82,579.
    (ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $175,000 
to $177,863.
    (iii) Violation of 16 U.S.C. 957(b), maximum from $2,750 to $2,795.
    (iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $16,250 
to $16,516.
    (v) Violation of 16 U.S.C. 957(c), maximum from $350,000 to 
$355,726.
    (6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation, 
maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \1\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty, as prescribed by law, is the maximum civil 
penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act civil monetary penalty (item (15)).
---------------------------------------------------------------------------

    (7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation, 
maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \3\ See footnote 1.
---------------------------------------------------------------------------

    (9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988), 
violation, maximum from $494,672 to $502,765.
    (10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983), 
violation, maximum from $23,548 to $23,933.
    (11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1972), violation, maximum from $27,500 to $27,950.
    (12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information 
Act,\4\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \4\ See footnote 1.
---------------------------------------------------------------------------

    (13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
violation, maximum from $167,728 to $170,472.
    (14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Violation as specified (1988), maximum from $49,467 to $50,276.
    (ii) Violation as specified (1988), maximum from $23,744 to $24,132.
    (iii) Otherwise violation (1978), maximum from $1,625 to $1,652.
    (15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation, maximum from $178,156 to $181,071.
    (16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources Convention 
Act of 1984,\5\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \5\ See footnote 1.
---------------------------------------------------------------------------

    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \6\ See footnote 1.
---------------------------------------------------------------------------

    (18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
    (i) 16 U.S.C. 3373(a)(1), violation, maximum from $25,464 to 
$25,881.
    (ii) 16 U.S.C. 3373(a)(2), violation, maximum from $637 to $647.
    (19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 
1982,\7\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \7\ See footnote 1.
---------------------------------------------------------------------------

    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \8\ See footnote 1.
---------------------------------------------------------------------------

    (21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986 
(1986); violation, minimum from $1,078 to $1,096; maximum from $10,781 
to $10,957.
    (22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 1992,\9\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \9\ See footnote 1.
---------------------------------------------------------------------------

    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act,\10\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \10\ See footnote 1.
---------------------------------------------------------------------------

    (24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation 
Act,\11\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \11\ See footnote 1.
---------------------------------------------------------------------------

    (25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995 
(1995), violation, maximum from $154,742 to $157,274.
    (26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995,\12\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \12\ See footnote 1.
---------------------------------------------------------------------------

    (27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act,\13\ violation, maximum from $178,156 to 
$181,071.
---------------------------------------------------------------------------

    \13\ See footnote 1.
---------------------------------------------------------------------------

    (28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \14\ See footnote 1.
---------------------------------------------------------------------------

    (29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation, maximum from $27,500 to $27,950.

[[Page 65]]

    (ii) Subsequent violation, maximum from $81,250 to $82,579.
    (30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation, maximum, from $70,117 to $71,264.
    (31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980 
(1980), violation, maximum from $70,117 to $71,264.
    (32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\ 
violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \15\ See footnote 1.
---------------------------------------------------------------------------

    (33) 16 U.S.C. 7407(b)(1), Port State Measures Agreement Act of 
2015,\16\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \16\ See footnote 1.
---------------------------------------------------------------------------

    (34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium 
Protection Act,\17\ violation, maximum from $178,156 to $181,071.
---------------------------------------------------------------------------

    \17\ See footnote 1.
---------------------------------------------------------------------------



Sec. 6.4  Effective date of adjustments for inflation to civil monetary 
          penalties.

    The Department of Commerce's 2017 adjustments for inflation made by 
Sec. 6.3, of the civil monetary penalties there specified, are effective 
on January 15, 2017, and said civil monetary penalties, as thus adjusted 
by the adjustments for inflation made by Sec. 6.3, apply only to those 
civil monetary penalties, including those whose associated violation 
predated such adjustment, which are assessed by the Department of 
Commerce after the effective date of the new civil monetary penalty 
level, and before the effective date of any future adjustments for 
inflation to civil monetary penalties thereto made subsequent to January 
15, 2017 as provided in Sec. 6.5.



Sec. 6.5  Subsequent annual adjustments for inflation to civil monetary 
          penalties.

    The Secretary of Commerce or his or her designee by regulation shall 
make subsequent adjustments for inflation to the Department of 
Commerce's civil monetary penalties annually, which shall take effect 
not later than January 15, notwithstanding section 553 of title 5, 
United States Code.

                            PART 7 [RESERVED]



PART 8_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE 
DEPARTMENT OF COMMERCE_EFFECTUATION OF TITLE VI OF THE CIVIL 
RIGHTS ACT OF 1964--Table of Contents



 Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause; 
                        Applicability to Programs

Sec.
8.1  Purpose.
8.2  Application of this part.
8.3  Definitions.
8.4  Discrimination prohibited.
8.5  Nondiscrimination clause.
8.6  Applicability of this part to Department assisted programs.

                      Subpart B_General Compliance

8.7  Cooperation, compliance reports and reviews and access to records.
8.8  Complaints.
8.9  Intimidatory or retaliatory acts prohibited.
8.10  Investigations.
8.11  Procedures for effecting compliance.
8.12  Hearings.
8.13  Decisions and notices.
8.14  Judicial review.
8.15  Effect on other laws; supplementary instructions; coordination.

Appendix A to Part 8--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

[[Page 66]]

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 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,

[[Page 67]]

    (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.
    (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:

[[Page 68]]

    (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, 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

[[Page 69]]

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 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

[[Page 70]]

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 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

[[Page 71]]

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 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.

[[Page 72]]

    (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 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]

[[Page 73]]



                      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.
    (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.

[[Page 74]]



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 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

[[Page 75]]

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.
    (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

[[Page 76]]

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.
    (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,

[[Page 77]]

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.



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.

[[Page 78]]

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).

                      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

[[Page 79]]

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).

                 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.

[[Page 80]]

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.

                          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

[[Page 81]]

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.
    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

[[Page 82]]

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 Secs. 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 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

[[Page 83]]

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 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 Secs. 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.

[[Page 84]]



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 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 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 Secs. 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.

[[Page 85]]



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), 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, Secs. 8a.225 and 8a.230, and Secs. 8a.300 through 8a.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Secs. 8a.300 through .310. Except as provided in 
paragraphs (d) and (e) of this section, Secs. 8a.300 through 8a.310 
apply to each recipient. A recipient to which Secs. 8a.300 through 
8a.310 apply shall not discriminate on the basis of sex in admission or 
recruitment in violation of Secs. 8a.300 through 8a.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 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. 
Secs. 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 Secs. 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

[[Page 86]]

on the basis of sex in admission or recruitment in violation of 
Secs. 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 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 Secs. 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.

[[Page 87]]

    (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.
    (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 Secs. 8a.300 through Secs. 8a.310 apply, except as 
provided in Secs. 8a.225 and Secs. 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 Secs. 8a.300 through 8a.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking

[[Page 88]]

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 
Secs. 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 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 Secs. 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 Secs. 8a.300 through 8a.310.



Sec. 8a.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Secs. 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 
Secs. 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 
Secs. 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 Secs. 8a.300 through 8a.310 do not 
apply, or an entity, not a recipient, to which Secs. 8a.300 through 
8a.310 would not apply if the entity were a recipient.

[[Page 89]]

    (b) Specific prohibitions. Except as provided in Secs. 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 
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

[[Page 90]]

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.
    (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

[[Page 91]]

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 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 
Secs. 8a.500 through 8a.550.

[[Page 92]]



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 Secs. 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.
    (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.

[[Page 93]]

    (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 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 Secs. 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 Secs. 8a.500 through 8a.550 apply 
to:
    (1) Recruitment, advertising, and the process of application for 
employment;

[[Page 94]]

    (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.



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 Secs. 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

[[Page 95]]

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-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 
Secs. 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.

[[Page 96]]



Sec. 8a.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 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 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.

[[Page 97]]



                      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
    (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

[[Page 98]]

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--
    (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]

[[Page 99]]



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 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

[[Page 100]]

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 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

[[Page 101]]

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 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

[[Page 102]]

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 notification shall also include an identification of the responsible 
employee designated pursuant to Sec. 8b.7(a). A recipient shall make the 
initial notification required by this paragraph within 90 days of the 
effective date of this part. Methods of initial and continuing 
notification may include the posting of notices, publications in 
newspapers and magazines, placement of notices in recipient's 
publications, and distribution of memoranda or other written 
communication. A recipient shall take appropriate steps to ensure that 
notice is available to persons with impaired vision or hearing.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information made available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications, or by revising and reprinting the materials 
and publications.



Sec. 8b.9  Administrative requirements for small recipients.

    The Secretary may require small recipients to comply with Secs. 8b.7 
and 8b.8, in whole or in part, when the Secretary finds a violation of 
this part or finds that such compliance will not significantly impair 
the ability of the small recipient to provide benefits or services.



Sec. 8b.10  Effect of state or local law or other requirements
and effect of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped individuals to 
receive services, participate in programs or 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

[[Page 103]]

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 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

[[Page 104]]

    (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 (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.

[[Page 105]]



                         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.
    (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

[[Page 106]]

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 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

[[Page 107]]

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 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,

[[Page 108]]

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 
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.

[[Page 109]]



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 Secs. 8.7 through 8.15 of this subtitle 
shall apply to this part.



PART 8c_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE
--Table of Contents



Sec.
8c.1  Purpose.
8c.2  Application.
8c.3  Definitions.
8c.4-8c.9  [Reserved]
8c.10  Self-evaluation.
8c.11  Notice.
8c.12-8c.29  [Reserved]
8c.30  General prohibitions against discrimination.
8c.31-8c.39  [Reserved]
8c.40  Employment.
8c.41-8c.48  [Reserved]
8c.49  Program accessibility: Discrimination prohibited.
8c.50  Program accessibility: Existing facilities.
8c.51  Program accessibility: New construction and alterations.
8c.52-8c.59  [Reserved]
8c.60  Communications.
8c.61-8c.69  [Reserved]
8c.70  Compliance procedures.

    Authority: 29 U.S.C 794.

    Source: 53 FR 19277, May 27, 1988, unless otherwise noted.



Sec. 8c.1  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 8c.2  Application.

    This part applies to all programs or activities conducted by the 
agency except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec. 8c.3  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Commerce.
    Assistant Attorney General means the Assistant Attorney General, 
Civil

[[Page 110]]

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 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

[[Page 111]]

    (3) ``Qualified handicapped person'' as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 8c.40.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978) Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]



Secs. 8c.4-8c.9  [Reserved]



Sec. 8c.10  Self-evaluation.

    (a) The agency shall, by July 26, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 8c.11  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the Secretary of 
Commerce or the Secretary's designee finds necessary to apprise such 
persons of the protections against discrimination assured them by 
section 504 and this regulation.



Secs. 8c.12-8c.29  [Reserved]



Sec. 8c.30  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of a planning or advisory board; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.

[[Page 112]]

    (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.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Secs. 8c.31-8c.39  [Reserved]



Sec. 8c.40  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR Part 1613, shall apply to employment in federally conducted 
programs or activities.



Secs. 8c.41-8c.48  [Reserved]



Sec. 8c.49  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 8c.50, no qualified individual 
with handicaps shall, because the agency's facilities are inaccessible 
to or unusable by individuals with handicaps, be denied the benefits of, 
be excluded from participation in, or otherwise be subjected to 
discrimination under any program or activity conducted by the agency.



Sec. 8c.50  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would

[[Page 113]]

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.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by January 26, 1989, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its program or activities to individuals with 
handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 8c.51  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 8c.52-8c.59  [Reserved]



Sec. 8c.60  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.

[[Page 114]]

    (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 to comply 
with this section would result in such an alteration or such burdens, 
the agency shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that, to the 
maximum extent possible, individuals with handicaps receive the benefits 
and services of the program or activity.



Secs. 8c.61-8.69  [Reserved]



Sec. 8c.70  Compliance procedures

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Chief of the Compliance Divison shall be responsible for 
coordinating implemention of this section. Complaints may be sent to 
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert 
C. Hoover Building, 14th and Constitution Avenue, Washington, DC, 20230.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the

[[Page 115]]

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.
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

[[Page 116]]

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 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

[[Page 117]]

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 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

[[Page 118]]

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.



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

[[Page 119]]

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.
    (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

[[Page 120]]

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.



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]

[[Page 121]]



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 as to others 
requesting the opportunity to comment.
    (d) The proponent group or appropriate committee which drafted the 
initial proposal under Sec. 10.1(d) shall consider all comments and 
suggestions submitted by the reviewer designated under paragraph (b) of 
this section, and those received by the Department as a result of any 
circulation under paragraph (c) of this section, and may make such 
adjustments in the proposal as are technically sound and as are believed 
to cause the standard to be generally acceptable to producers, 
distributors, users, consumers, and other interested parties. The 
proposal will then be submitted to the Department for further 
processing.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec. 10.4  Establishment of the Standard Review Committee.

    (a) The Department shall establish and appoint the members of a 
Standard Review Committee within a reasonable time after receiving a 
proposed standard. The committee shall consist of qualified 
representatives of producers, distributors, and users or consumers of 
product for which a standard is sought or any other appropriate general 
interest groups such as State and Federal agencies. When requested by 
the Standard Review Committee, the Department shall appoint one voting 
member from among the representatives of the Federal agencies, other 
than the Department of Commerce. All other representatives of Federal 
agencies on the Standard Review Committees shall be advisory nonvoting 
members. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec. 10.2 may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) A Standard Review Committee may remain in existence for a period

[[Page 122]]

necessary for the final development of the standard, or for 2 years, 
whichever is less.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall be subject to approval by the Department. The committee may 
conduct business either in a meeting or through correspondence, but only 
if a quorum participates. A quorum shall consist of two-thirds of all 
voting members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the action of recommending a standard to the 
Department, the requirements for which are contained in Sec. 10.5(b).



Sec. 10.5  Development of a recommended standard.

    (a) The Standard Review Committee, with the guidance and assistance 
of the Department and, if appropriate, the reviewer designated under 
Sec. 10.3(b), shall review a proposed standard promptly. If the 
committee finds that the proposal meets the requirements set forth in 
Sec. 10.3(a), it may recommend to the Department that the proposal be 
circulated for acceptance under Sec. 10.6. If, however, the committee 
finds that the proposal being reviewed does not meet the requirements 
set forth in Sec. 10.3(a), the committee shall change the proposal, 
after consulting with the proponent group, so that these requirements 
are met, before recommending such proposal to the Department.
    (b) The recommendation of a standard by the Standard Review 
Committee shall be approved by at least three-quarters, or rejected by 
more than one-quarter, of all of the members of the committee eligible 
to vote. The voting on the recommendation of a standard shall be 
conducted by the Department if conducted by letter ballot. If such 
voting is accomplished at a meeting of the committee, the balloting 
shall be either by roll call or by signed written ballot conducted by 
the Department or the chairman of this committee. If conducted by the 
chairman, a report of the vote shall be made to the Department within 15 
days. If the balloting at the meeting does not result in either approval 
by at least three-quarters of all members (or alternates) eligible to 
vote (whether present or not), or rejection by more than one-quarter of 
the members (or alternates) or the committee eligible to vote, the 
balloting shall be disregarded and the Department shall subsequently 
conduct a letter ballot of all members of the committee.
    (c) Any member of the committee casting a negative ballot shall have 
the right to support an objection by furnishing the chairman of the 
committee and the Department with a written statement setting forth the 
basis for the objection. The written statement of objection shall be 
filed within 15 days after the date of the meeting during which the 
voting on the standard was accomplished, or, in the case of a letter 
ballot, within the time limit established for the return of the ballot.
    (d) At the time a recommended standard is submitted to the 
Department, the Chairman of the Standard Review Committee shall furnish 
a written report in support of the committee's recommendation. Such 
report shall include a statement with respect to compliance with the 
requirements as established by these procedures, a discussion of the 
manner in which any objections were resolved, and a discussion of any 
unresolved objections together with the committee's reasons for 
rejecting such unresolved objections.



Sec. 10.6  Procedures for acceptance of a recommended standard.

    (a) Upon receipt from the Standard Review Committee of a recommended 
standard and report, the Department shall give appropriate public notice 
and distribute the recommended standard for acceptance unless:
    (1) Upon a showing by any member of the committee who has voted to 
oppose the recommended standard on the basis of an unresolved objection, 
the Department determines that if such objection were not resolved, the 
recommended standard:
    (i) Would be contrary to the public interest, if published;
    (ii) Would be technically inadequate; or

[[Page 123]]

    (iii) Would be inconsistent with law or established public policy; 
or
    (2) The Department determines that all criteria and procedures set 
forth herein have not been met satisfactorily or that there is a legal 
impediment to the recommended standard.
    (b) Distribution for acceptance or rejection for the purpose of 
determining general concurrence will be made to a list compiled by the 
Department, which, in the judgment of the Department, shall be 
representative of producers, distributors, and users and consumers.
    (c) Distribution for comment will be made to any party filing a 
written request with the Department, and to such other parties as the 
Department may deem appropriate, including testing laboratories and 
interested State and Federal agencies.
    (d) The Department shall analyze the recommended standard and the 
responses received under paragraphs (b) and (c) of this section. If such 
analysis indicates that the recommended standard is supported by a 
consensus, it shall be published as a Voluntary Product Standard by the 
Department: Provided, That all other requirements listed in these 
procedures have been satisfied.
    (e) The following definitions shall apply to the term used in this 
section:
    (1) ``Consensus'' means general concurrence and, in addition, no 
substantive objection deemed valid by the Department.
    (2) ``General concurrence'' means acceptance among those responding 
to the distribution made under paragraph (b) of this section in 
accordance with the conditions set forth in paragraph (f) of this 
section.
    (3) ``Substantive objection'' means a documented objection based on 
grounds that one or more of the criteria set forth in these procedures 
has not been satisfied.
    (4) ``Average industry acceptance'' means a percentage equal to the 
sum of the percentages of acceptance obtained from responses to 
distribution of the recommended standard in the producer segment, the 
distributor segment, and the user and consumer segment, divided by 
three. No consideration will be given to volume of production or volume 
of distribution in determining average industry acceptance.
    (5) ``Producer segment'' means those persons who manufacture or 
produce the product covered by the standard.
    (6) ``Distributor segment'' means those persons who distribute at 
wholesale or retail the product covered by the standard.
    (7) ``User and consumer segment'' means those persons who use or 
consume the product covered by the standard.
    (8) ``Acceptance by volume of production'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
producer segment. The weighting of each response will be made in 
accordance with the volume of production represented by each respondent.
    (9) ``Acceptance by volume of distribution'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
distributor segment. The weighting of each response will be made in 
accordance with the volume of distribution represented by each 
respondent.
    (f) A recommended standard shall be deemed to be supported by 
general concurrence whenever:
    (1) An analysis of the responses to the distribution under paragraph 
(b) of this section indicates:
    (i) An average industry acceptance of not less than 75 percent;
    (ii) Acceptance of not less than 70 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 70 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or 
both of such acceptances is deemed necessary by the Department; or
    (2) The Department determines that publication of the standard is 
appropriate under the procedures set forth in

[[Page 124]]

paragraph (g) of this section and, in addition, an analysis of the 
responses to the distribution under paragraph (b) of this section 
indicates:
    (i) An average industry acceptance of not less than 66\2/3\ percent;
    (ii) Acceptance of not less than 60 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 60 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or 
both of such acceptances is deemed necessary by the Department.
    (g) A recommended standard which fails to achieve the acceptance 
requirements of paragraph (f)(1) of this section, but which satisfies 
the acceptance criteria of paragraph (f)(2) of this section, shall be 
returned to the Standard Review Committee for reconsideration. The 
committee, by the affirmative vote of not less than three-quarters of 
all members eligible to vote, may resubmit the recommended standard 
without change to the Department with a recommendation that the standard 
be published as a Voluntary Product Standard. The Department shall then 
conduct a public rulemaking hearing in accordance with the requirements 
of law as set forth in section 553 of Title 5, United States Code, to 
assist it in determining whether publication of the standard is in the 
public interest. If the Department determines that publication of the 
standard is in the public interest, the standard shall be published as a 
Voluntary Product Standard.



Sec. 10.7  Procedure when a recommended standard is not supported
by a consensus.

    If the Department determines that a recommended standard is not 
supported by a consensus, the Department may:
    (a) Return the recommended standard to the Standard Review Committee 
for further action, with or without suggestions;
    (b) Terminate the development of the recommended standard under 
these procedures; or
    (c) Take such other action as it may deem necessary or appropriate 
under the circumstances.



Sec. 10.8  Standing Committee.

    (a) The Department shall establish and appoint the members of a 
Standing Committee prior to the publication of a standard. The committee 
may include members from the Standard Review Committee, and shall 
consist of qualified representatives of producers, distributors, and 
users or consumers of the product covered by the standard, and 
representatives of appropriate general interest groups such as 
municipal, State, and Federal agencies. When requested by the Standing 
Committee, the Department shall appoint one voting member from among the 
representatives of the Federal agencies, other than the Department of 
Commerce. When requested by the Standing Committee for PS 20-70, 
``American Softwood Lumber Standard,'' the Department shall appoint two 
voting members from among the representatives of the Federal agencies, 
other than the Department of Commerce. All other representatives of 
Federal agencies shall be advisory nonvoting members of Standing 
Committees. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec. 10.2, may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) Appointments to a Standing Committee may not exceed a term of 5 
years. However, the committee may be reconstituted by the Department 
whenever appropriate, and members may be reappointed by the Department 
to succeeding terms. Appointments to the committee will be terminated 
upon the withdrawal of the standard.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall

[[Page 125]]

be subject to approval by the Department. The committee may conduct 
business either in a meeting or through correspondence, but only if a 
quorum participates. A quorum shall consist of two-thirds of all voting 
members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the approval of revisions of the standard 
which shall be governed by the provisions of Sec. 10.5 (b), (c), and 
(d),
    (d) The members of a Standing Committee should be knowledgeable 
about:
    (1) The product or products covered by the standard;
    (2) The standard itself; and
    (3) Industry and trade practices relating to the standard.
    (e) The committee shall:
    (1) Keep itself informed of any advancing technology that might 
affect the standard;
    (2) Provide the Department with interpretations of provisions of the 
standard upon request;
    (3) Make recommendations to the Department concerning the 
desirability or necessity of revising or amending the standard;
    (4) Receive and consider proposals to revise or amend the standard; 
and
    (5) Recommend to the Department the revision or amendment of a 
standard.



Sec. 10.9  Publication of a standard.

    A Voluntary Product Standard published by the department under these 
procedures shall be assigned an appropriate number for purposes of 
identification and reference. Public notice shall be given regarding the 
publication and identification of the standard. A voluntary standard by 
itself has no mandatory or legally binding effect. Any person may choose 
to use or not to use such a standard. Appropriate reference in 
contracts, codes, advertising, invoices, announcements, product labels, 
and the like may be made to a Voluntary Product Standard published under 
these procedures. Such reference shall be in accordance with such 
policies as the Department may establish, but no product may be 
advertised or represented in any manner which would imply or tend to 
imply approval or endorsement of that product by the Department or by 
the Federal Government.



Sec. 10.10  Review of published standards.

    (a) Each standard published under these or previous procedures shall 
be reviewed regularly to determine the feasibility of transferring 
sponsorship to a private standards-writing organization. While the 
Department encourages the development of standards to replace Voluntary 
Product Standards by private standards-writing organizations, withdrawal 
of a Voluntary Product Standard, which meets the requirements of 
Sec. 10.0(b), shall not be considered until a replacement standard is 
published.
    (b) Each standard published under these or previous procedures shall 
be reviewed by the Department, with such assistance of the Standing 
Committee or others as may be deemed appropriate by the Department, 
within 5 years after initial issuance or last revision and at least 
every 5 years thereafter. The purpose of this review shall be to 
determine whether the standard has become obsolete, technically 
inadequate, no longer acceptable to or used by the industry, or 
inconsistent with law or established public policy.
    (c) If any of the above conditions is found to exist, the Department 
shall initiate action to amend, revise, or withdraw the standard in 
accordance with Sec. 10.11 or Sec. 10.13. If none is found to exist, the 
standard shall be kept in effect provided adequate funding is 
maintained.



Sec. 10.11  Revision or amendment of a standard.

    (a) A published standard shall be subject to revision or amendment 
when it is determined to be inadequate by its Standing Committee or by 
the Department of one or more of the following reasons or for any other 
appropriate reasons:
    (1) Any portion of the standard is obsolete, technically inadequate, 
or no longer generally acceptable to or used by the industry;
    (2) The standard or any part of it is inconsistent with law or 
established public policy; or

[[Page 126]]

    (3) The standard or any part of it is being used to mislead users or 
consumers or is determined to be against the interest of users, 
consumers, or the public in general.
    (b) A revision of a standard shall be considered by the Department 
to include changes which are comprehensive in nature, which have a 
substantive effect on the standards, which change the level of 
performance or safety or the design characteristics of the product being 
standardized, or which cannot reasonably be injected into a standard 
without disturbing the general applicability of the standard. Each 
suggestion for revision shall be submitted by the Department to the 
Standing Committee for appropriate consideration. The Standing Committee 
shall serve the same functions in the revision of a standard as the 
Standard Review Committee serves in the development of a new standard. 
The processing of a revision of a standard shall be dependent upon the 
age of the standard as computed from its effective date and shall be 
accomplished as follows:
    (1) A proposed revision of a standard older than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard under these procedures 
and, when approved for publication, the standard shall be republished 
and reidentified to indicate the year in which the revision became 
effective. The revised standard shall supersede the previously published 
standard.
    (2) A proposed revision of a standard less than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard except that:
    (i) Distribution for acceptance or rejection shall be made to an 
appropriate list of producers, distributors, and users and consumers 
compiled by the Department;
    (ii) If the revision affects only one subsection of the requirement 
section and/or only one subsection of the test methods section, it may 
be circulated separately for determining consensus and subsequently 
published as an addendum to the standard with appropriate dissemination 
and public notice of the addendum; and
    (iii) If the revision does not change the level of performance or 
safety or the design characteristics of the product being standardized, 
the standard need not be reidentified.
    (c) An amendment to a standard shall be considered by the Department 
to be any non-editorial change which is not comprehensive in nature, 
which has no substantive effect on the standard, which does not change 
the level of performance or safety or the design characteristics of the 
product being standardized, and which reasonably can be injected into a 
standard without disturbing the general applicability of the standard. 
Each suggestion for amendment shall be submitted by the Department to 
the Standing Committee for appropriate consideration. An amendment to a 
standard recommended by not less than 90 percent of the members of the 
committee eligible to vote and found acceptable by the Department, shall 
be published as an addendum (until the standard is republished) and 
distributed to acceptors of record. Public notice of the amendment shall 
be given and copies of the amendment shall be distributed to those 
filing written requests.



Sec. 10.12  Editorial changes.

    The Department may, without prior notice, make such editorial or 
other minor changes as it deems necessary to reduce ambiguity or to 
improve clarity in any proposed, recommended, or published standard, or 
revision or amendment thereof.



Sec. 10.13  Withdrawal of a published standard.

    (a) Standards published under these and previous procedures may be 
withdrawn by the Director of the National Institute of Standards & 
Technology at any time. Such action will be taken if, after consultation 
with the Standing Committee as provided in paragraph (a)(1) of this 
section and after public notice, the Director determines that the 
standard is: Obsolete; technically inadequate; no longer generally 
acceptable to and used by the industry; inconsistent with law or 
established public policy; not in the public interest; or

[[Page 127]]

otherwise inappropriate; and revision or amendment is not feasible or 
would serve no useful purpose. Additionally, a standard may be withdrawn 
if it cannot be demonstrated that a particular standard has substantial 
public impact, that it does not duplicate a standard published by a 
private standards-writing organization, or that lack of government 
sponsorship would result in significant public disadvantage for legal 
reasons or for reasons of domestic and international trade. The Director 
may withdraw a standard if costs to maintain such a standard are not 
reimbursed by the proponent or other government agencies.
    (1) Before withdrawing a standard published under these procedures, 
the Director will review the relative advantages and disadvantages of 
amendment, revision, development of a new standard, or withdrawal with 
the members of the Standing Committee, if such committee was appointed 
or reappointed within the previous five years.
    (2) Public notice of intent to withdraw an existing standard 
published under these procedures shall be given and a 30-day period will 
be provided for the filing with the Director or written objections to 
the withdrawal. Such objections will be considered and analyzed by the 
Director before a determination is made to withdraw the standard. If the 
Director determines that a particular standard does not meet the 
criteria set out in Sec. 10.0(b), the standard will be withdrawn.
    (b) The filing under paragraph (a) of this section of a request to 
retain a standard or standards shall operate to stay the withdrawal of 
such standard or standards until the Director's determination has been 
made. If the Director determines that the requested standard or 
standards shall be withdrawn, the stay will remain in effect, if an 
appeal is filed in accordance with the requirements of Sec. 10.14, until 
the decision of the Director is announced in the Federal Register. If, 
however, no appeal is received, the Director shall announce withdrawal 
of the particular standard or standards.
    (c) Notice of the withdrawal action will be published in the Federal 
Register and such withdrawal will take effect 60 days from the date the 
withdrawal notice is published.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec. 10.14  Appeals.

    (a) Any person directly affected by a procedural action taken by 
NIST or the Standard Review Committee under Secs. 10.5, 10.6 or 10.7 
regarding the development of a standard, by NIST or the Standing 
Committee under Sec. 10.10 regarding the review of a published standard, 
or under Sec. 10.11 regarding the revision of a standard, or under 
Sec. 10.13 regarding the withdrawal of a standard, may appeal such 
action.
    (b) Such appeal shall be filed in written form with the body taking 
the action complained of (NIST, the Standard Review Committee, or the 
Standing Committee) within 30 days after the date of announcement of the 
action.
    (c) If appeal is filed with the Standard Review Committee or the 
Standing Committee, the Committee shall attempt to resolve the appeal 
informally. If the appeal is filed with NIST, NIST with the consultation 
and advice of the Standard Review Committee or the Standing Committee, 
whichever is appropriate, shall attempt to resolve the appeal 
informally.
    (d) If the appeal is to the Standard Review Committee or the 
Standing Committee and the Committee is unable to resolve such an appeal 
informally, the Committee shall hold a hearing regarding the appeal. 
Announcement of the hearing shall be made to members of the Standard 
Review Committee or the Standing Committee and all the acceptors of 
record, when appropriate, as well as other known interests. Notice of 
the hearing shall be published in the Federal Register. The hearing will 
be an informal, nonadversary proceeding at which there will be no formal 
pleadings or adverse parties. Written statements will be furnished by 
witnesses prior to the hearing. A record of the hearing will be made. 
Copies of the written statements and the record of the hearing will be 
available at cost.
    (e) Those members of the Committee hearing the appeal will develop a 
recommendation to the Committee concerning the resolution of the appeal.

[[Page 128]]

NIST will review the recommendation and if found acceptable will subject 
it to a letter ballot of the Committee. Approval by three-fourths of the 
members of the Committee eligible to vote will constitute acceptance by 
the Committee and by NIST. Notice of the Committee decision will be 
published in the Federal Register.
    (f) If the appeal is to NIST and the attempt to resolve the appeal 
informally under paragraph (c) of this section is not successful, the 
Deputy Director of NIST will schedule a hearing with an appeals panel at 
an appropriate location. Announcement of the hearing shall be made to 
members of the Standard Review Committee or Standing Committee and all 
acceptors of record, when appropriate, as well as to other known 
interests. Notice of the hearing shall be published in the Federal 
Register.
    (g) The Deputy Director of NIST will name two other persons, who 
have not been directly involved in the matter in dispute and who will 
not be directly or materially affected by any decision made or to be 
made in the dispute, to sit on the panel with the Deputy Director, who 
will act as presiding officer. The presiding officer will have the right 
to exercise such authority as necessary to ensure the equitable and 
efficient conduct of the hearing and to maintain an orderly proceeding.
    (h) The hearing will be an informal, nonadversary proceeding at 
which there will be no formal pleadings or adverse parties. The hearing 
will be open to the public. Witnesses shall submit a written 
presentation for the record seven days prior to the hearing. A record 
will be made of the hearing. Copies of the written statements and the 
record of the hearing will be available at cost.
    (i) The appeals panel will make a recommendation to the Director of 
NIST. The Director's decision on the appeal will be announced within 60 
days following the hearing and will be communicated to the complainant 
and other interested parties by letter. Notice of the Director's 
decision shall be published in the Federal Register.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec. 10.15  Interpretations.

    (a) An interpretation of a Voluntary Product Standard may be 
obtained through the submission of a written request. The request shall 
identify the specific section of the standard involved.
    (b) In the case of PS 20-70, the ``American Softwood Lumber 
Standard,'' interpretations shall be made by the American Lumber 
Standards Committee (ALSC) under the procedures developed by the ALSC 
and found acceptable to NIST.
    (c) In the case of the other Voluntary Product Standards, 
interpretations shall be made by the appropriate Standing Committees 
under procedures developed by those committees and found acceptable to 
NIST.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec. 10.16  Effect of procedures.

    Nothing contained in these procedures shall be deemed to apply to 
the development, publication, revision, amendment, or withdrawal of any 
standard which is not identified as a ``Voluntary Product Standard'' by 
the Department. The authority of the Department with respect to 
engineering standards activities generally, including the authority to 
publish appropriate recommendations not identified as ``Voluntary 
Product Standards,'' is not limited in any way by these procedures.



PART 11_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents



    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 
(42 U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 11.1  Uniform relocation and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation

[[Page 129]]

Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth 
in 49 CFR Part 24.

[52 FR 48018, Dec. 17, 1987 and 54 FR 8912, 8913, Mar. 2, 1989]



PART 12_FAIR PACKAGING AND LABELING--Table of Contents



Sec.
12.1  Introduction.
12.2  Undue proliferation.
12.3  Development of voluntary product standards.
12.4  Report to the Congress.

    Authority: Secs. 5(d), 5(e), 80 Stat. 1298, 15 U.S.C. 1454; sec. 3, 
Dept. Order 177 (31 FR 6746), as amended (32 FR 3110).

    Source: 32 FR 11074, July 29, 1967, unless otherwise noted.



Sec. 12.1  Introduction.

    (a) These procedures apply to the discharge of the responsibility 
given to the Secretary of Commerce by sections 5(d) and 5(e) of the Fair 
Packaging and Labeling Act (Pub. L. 89-755, 80 Stat. 1299), hereinafter 
called the ``Act''. The word ``Secretary'', as used hereinafter, shall 
refer to the Secretary of Commerce or his authorized delegate.
    (b) The Secretary does not have the responsibility or the authority 
under the Act to issue any regulations governing the packaging or 
labeling practices of private industry.
    (c) The Secretary does have the responsibility and authority to:
    (1) Determine whether the reasonable ability of consumers to make 
value comparisions with respect to any consumer commodity or reasonably 
comparable consumer commodities is impaired by undue proliferation of 
the weights, measures, or quantities in which such commodity or 
commodities are being distributed in packages for sale at retail.
    (2) Request manufacturers, packers, and distributors, where a 
determination of undue proliferation has been made, to participate in 
the development of a voluntary product standard under the procedures 
governing the Department's voluntary standards program.
    (3) Report to Congress with a recommendation as to whether 
legislation providing regulatory authority should be enacted, when after 
1 year following the date private industry has been requested to 
participate in the development of a voluntary product standard it is 
determined that such a standard will not be published, or when following 
the publication of such a standard it is determined that the standard 
has not been observed.
    (d) The Act does not furnish a detailed, definitive explanation of 
``undue proliferation''. It does, however, point out that the condition 
of ``undue proliferation'' must be one which ``impairs the reasonable 
ability of consumers to make value comparisons'' with respect to 
consumer commodities. Generally, therefore, the Department will 
determine ``undue proliferation'' on a case-by-case basis, and, 
accordingly, is establishing by these procedures an orderly process for 
such determinations.
    (e) As used hereinafter the term ``undue proliferation'' shall refer 
to such undue proliferation--of the weights, measures or quantities in 
which any consumer commodity or reasonably comparable consumer 
commodities are being distributed for sale at retail--as impairs the 
reasonable ability of consumers to make value comparisons with respect 
to such consumer commodity or commodities, as set out in section 5(d) of 
the Act.



Sec. 12.2  Undue proliferation.

    (a) Information as to possible undue proliferation. Any person or 
group, including a State or local governmental entity, is invited to 
communicate information to the Secretary concerning the possible 
existence of undue proliferation. Such communications should be in 
writing and include supporting information and explanations.
    (b) Initiation of inquiry as to undue proliferation. Upon receipt of 
information regarding the possible existence of undue proliferation, the 
Secretary will determine whether there has been a showing of good cause 
warranting an inquiry. If the Secretary determines that good cause 
exists, he shall initiate an inquiry for the purpose of finding

[[Page 130]]

facts concerning the existence of undue proliferation.
    (c) Procedures for inquiry--(1) Cooperation with State and local 
officials. Any inquiry initiated under paragraph (b) of this section may 
be conducted in cooperation with State and local weights and measures 
officials.
    (2) Participation by interested persons. The Secretary may, during 
the course of the inquiry, afford interested persons or groups an 
opportunity to submit in writing comments, data, arguments, views, or 
other information relevant to the inquiry.
    (d) Proposed determination as to existence of undue proliferation. 
(1) If, after consideration of all relevant information, the Secretary 
concludes that undue proliferation appears to exist, he shall publish a 
proposed determination to this effect. The proposed determination shall 
identify the particular consumer commodity or commodities involved and 
shall be accompanied by a concise statement of the facts upon which it 
is based.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (e) Final determination as to undue proliferation. As soon as 
practicable following the conclusion of the proceedings described in 
paragraph (d) of this section, the Secretary shall either publish a 
final determination of undue proliferation, or he shall publish a notice 
withdrawing his proposed determination of undue proliferation. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same or similar 
subject matter under paragraph (b) of this section.



Sec. 12.3  Development of voluntary product standards.

    (a) Invitation to participate in the development of a voluntary 
product standard. Whenever the Secretary publishes a final determination 
of undue proliferation under Sec. 12.2(e), he shall invite 
manufacturers, packers, and distributors of the commodity or commodities 
involved to participate in the development of a voluntary product 
standard in accordance with the terms of the Act and the Department's 
published procedures for voluntary product standards. The term 
``Voluntary Product Standard'' as used in this section means a standard 
for weights, measures or quantities in which the commodity or 
commodities are being distributed in packages for sale at retail.
    (b) Determination that voluntary product standard will not be 
published. (1) If a voluntary product standard has not been developed 
within one year from the date on which participation was invited, the 
Secretary may conclude that a voluntary product standard will not likely 
be published. Upon reaching such a conclusion, the Secretary will 
publish a proposed determination that a voluntary product standard will 
not be published.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (4) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (b)(2) and (3) of this section, the 
Secretary shall either publish a final determination that a

[[Page 131]]

voluntary product standard will not be published, or he shall publish a 
notice withdrawing his proposed determination under paragraph (b)(1) of 
this section. In no event shall the withdrawal of a proposed 
determination operate to preclude the publication of another proposed 
determination under paragraph (b)(1) of this section with respect to the 
same or similar subject matter.
    (c) Determination that a published voluntary product standard has 
not been observed. (1) Whenever the Secretary has reason to believe that 
a voluntary product standard published under these procedures is not 
being observed he shall initiate an inquiry to determine such fact.
    (2) If, on the basis of the information developed during the 
inquiry, the Secretary concludes that the voluntary product standard is 
not being observed, he shall publish a proposed determination to this 
effect. The proposed determination shall identify the particular 
standard involved and shall be accompanied by a concise statement of the 
facts upon which it is based.
    (3) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (4) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (5) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (c)(3) and (4) of this section, and 
upon consideration of all relevant information, the Secretary shall 
either publish a final determination that the voluntary product standard 
is not being observed, or he shall publish a notice withdrawing his 
proposed determination under paragraph (c)(2) of this section. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same standard 
under paragraph (c)(1) of this section.



Sec. 12.4  Report to the Congress.

    Whenever the Secretary publishes a final determination under 
Sec. 12.3(b)(4) or Sec. 12.3(c)(5), he shall promptly report such 
determination to the Congress with a statement of the efforts that have 
been made under the voluntary standards program and his recommendation 
as to whether Congress should enact legislation providing regulatory 
authority to deal with the situation in question.



PART 13_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF COMMERCE PROGRAMS 
AND ACTIVITIES--Table of Contents



Sec.
13.1  Purpose.
13.2  Definitions.
13.3  Programs and activities of the Department subject to the 
          regulations.
13.4  General responsibilities under the Order.
13.5  Obligations with respect to Federal interagency coordination.
13.6  State selection of programs and activities.
13.7  Communication with state and local officials concerning the 
          Department's programs and activities.
13.8  Opportunity to comment on proposed Federal financial assistance 
          and direct Federal development.
13.9  Receipt of and response to comments.
13.10  Accommodation of intergovernmental concerns.
13.11  Obligations in interstate situations.

    Authority: Executive Order 12372, July 14, 1982, 47 FR 30959, as 
amended April 8, 1983, 48 FR 15587, sec. 401, Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204, 
Demonstration Cities and Metropolitan Development Act of 1966 as amended 
(42 U.S.C. 3334).

    Source: 48 FR 29134, June 24, 1983, unless otherwise noted.



Sec. 13.1  Purpose.

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of

[[Page 132]]

section 401 of the Intergovernmental Cooperation Act of 1968 and section 
204 of the Demonstration Cities and Metropolitan Development Act of 
1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 13.2  Definitions.

    Department means the U.S. Department of Commerce.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of Commerce or 
an official or employee of the Department acting for the Secretary under 
a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 13.3  Programs and activities of the Department subject to the 
regulations.

    The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and identifies which of these are subject to the 
requirements of section 204 of the Demonstration Cities and Metropolitan 
Development Act.



Sec. 13.4  General responsibilities under the Order.

    (a) The Secretary provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
non-Federal funds for, or that would be directly affected by, proposed 
Federal financial assistance from, or direct Federal development by, the 
Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed Federal financial assistance and direct Federal 
development, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed Federal financial assistance and direct Federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
Federal financial assistance or direct Federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports state and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.



Sec. 13.5  Obligations with respect to Federal interagency 
coordination.

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected Federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.

[[Page 133]]



Sec. 13.6  State selection of programs and activities.

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 13.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with elected local elected 
officials regarding the change. The Department may establish deadlines 
by which states are required to inform the Secretary of changes in their 
program selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec. 13.7  Communication with state and local officials concerning
the Department's programs and activities.

    (a) For those programs and activities covered by a state process 
under Sec. 13.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed Federal 
financial assistance or direct Federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process. This notice may be made by publication 
in the Federal Register or other appropriate means, which the Department 
in its discretion deems appropriate.



Sec. 13.8  Opportunity to comment on proposed Federal financial
assistance and direct Federal development.

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities at least:
    (1) 30 days from the date established by the Secretary to comment on 
proposed Federal financial assistance in the form of noncompeting 
continuation awards; and
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance 
other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comment.



Sec. 13.9  Receipt of and response to comments.

    (a) The Secretary follows the procedures in Sec. 13.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all Federal agencies; and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 13.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.

[[Page 134]]

    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Secretary follows the procedures of Sec. 13.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 13.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec. 13.10  Accommodation of intergovernmental concerns.

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision in such form as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 13.11  Obligations in interstate situations.

    (a) The Secretary is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity.
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 13.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 13.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.

                           PART 14 [RESERVED]



PART 15_LEGAL PROCEEDINGS--Table of Contents



                      Subpart A_Service of Process

Sec.
15.1  Scope and purpose.
15.2  Definitions.
15.3  Acceptance of service of process.

  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

15.11  Scope.
15.12  Definitions.
15.13  Demands for testimony or production of documents: Department 
          policy.
15.14  Demand for testimony or production of documents: Department 
          procedures.
15.15  Procedures when a Department employee receives a subpoena.
15.16  Legal proceedings between private litigants: Expert or opinion 
          testimony.
15.17  Demands or requests in legal proceedings for records protected by 
          confidentiality statutes.

[[Page 135]]

15.18  Testimony of Department employees in proceedings involving the 
          United States.

Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

15.21  Purpose.
15.22  Applicability and scope.
15.23  Definitions.
15.24  Policy.
15.25  Procedures.

 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

15.31  Policy.
15.32  Procedures for the handling of lawsuits against Department 
          employees arising within the scope of their office or 
          employment.

    Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 1518; 
Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 1004; 44 
U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 15 U.S.C. 
1673; 42 U.S.C. 665.

    Editorial Note: Nomenclature changes to part 15 appear at 62 FR 
19669, Apr. 23, 1997.



                      Subpart A_Service of Process

    Source: 53 FR 41318, Oct. 21, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec. 15.1  Scope and purpose.

    (a) This subpart sets forth the procedures to be followed when a 
summons or complaint is served on the Department, a component, or the 
Secretary or a Department employee in his or her official capacity.
    (b) This subpart is intended to ensure the orderly execution of the 
affairs of the Department and not to impede any legal proceeding.
    (c) This subpart does not apply to subpoenas. The procedures to be 
followed with respect to subpoenas are set out in subpart B.
    (d) This subpart does not apply to service of process made on a 
Department employee personally on matters not related to official 
business of the Department or to the official responsibilities of the 
Department employee.

[53 FR 41318, Oct. 21, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec. 15.2  Definitions.

    For the purpose of this subpart:
    (a) General Counsel means the General Counsel of the United States 
Department of Commerce or other Department employee to whom the General 
Counsel has delegated authority to act under this subpart, or the chief 
legal officer (or designee) of the Department of Commerce component 
concerned.
    (b) Component means Office of the Secretary or an operating unit of 
the Department as defined in Department Organization Order 1-1.
    (c) Department means the Department of Commerce.
    (d) Department employee means any officer or employee of the 
Department, including commissioned officers of the National Oceanic and 
Atmospheric Administration.
    (e) Legal proceeding means a proceeding before a tribunal 
constituted by law, including a court, an administrative body or 
commission, or an administrative law judge or hearing officer.
    (f) Official business means the authorized business of the 
Department.
    (g) Secretary means Secretary of Commerce.



Sec. 15.3  Acceptance of service of process.

    (a) Except as otherwise provided in this subpart, any summons or 
complaint to be served in person or by registered or certified mail or 
as otherwise authorized by law on the Department, a component or the 
Secretary or a Department employee in their official capacity, shall be 
served on the General Counsel of the United States Department of 
Commerce, Washington, DC 20230.
    (b) Any summons or complaint to be served in person or by registered 
or certified mail or as otherwise authorized by law on the Patent and 
Trademark Office or the Commissioner of Patents and Trademarks or an 
employee of the Patent and Trademark Office in his or her official 
capacity, shall be served on the Solicitor for the Patent and Trademark 
Office or a Department employee designated by the Solicitor.

[[Page 136]]

    (c) Except as otherwise provided in this subpart, any component or 
Department employee served with a summons or complaint shall immediately 
notify and deliver the summons or complaint to the office of the General 
Counsel. Any employee of the Patent and Trademark Office served with a 
summons or complaint shall immediately notify and deliver the summons or 
complaint to the office of the Solicitor.
    (d) Any Department employee receiving a summons or complaint shall 
note on the summons or complaint the date, hour, and place of service 
and whether service was by personal delivery or by mail.
    (e) When a legal proceeding is brought to hold a Department employee 
personally liable in connection with an action taken in the conduct of 
official business, rather than liable in an official capacity, the 
Department employee by law is to be served personally with process. 
Service of process in this case is inadequate when made upon the General 
Counsel or the Solicitor or their designees. Except as otherwise 
provided in this subpart, a Department employee sued personally for an 
action taken in the conduct of official business shall immediately 
notify and deliver a copy of the summons or complaint to the office of 
the General Counsel. Any employee of the Patent and Trademark Office 
sued personally for an action taken in the conduct of official business 
shall immediately notify and deliver a copy of the summons or complaint 
to the Office of the Solicitor.
    (f) A Department employee sued personally in connection with 
official business may be represented by the Department of Justice at its 
discretion. See 28 CFR 50.15 and 50.16 (1987).
    (g) The General Counsel or Solicitor or Department employee 
designated by either, when accepting service of process for a Department 
employee in an official capacity, shall endorse on the Marshal's or 
server's return of service form or receipt for registered or certified 
mail the following statement: ``Service accepted in official capacity 
only.'' The statement may be placed on the form or receipt with a rubber 
stamp.
    (h) Upon acceptance of service or receiving notification of service, 
as provided in this section, the General Counsel and Solicitor shall 
take appropriate steps to protect the rights of the Department, 
component, the Secretary or Department employee involved.



  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

    Source: 60 FR 9291, Feb. 17, 1995, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec. 15.11  Scope.

    (a) This subpart sets forth the policies and procedures of the 
Department of Commerce regarding the testimony of employees, and former 
employees, as witnesses in legal proceedings and the production or 
disclosure of information contained in Department of Commerce documents 
for use in legal proceedings pursuant to a request, order, or subpoena 
(collectively referred to in this subpart as a ``demand'').
    (b) This subpart does not apply to any legal proceeding in which an 
employee is to testify while on leave status, regarding facts or events 
that are unrelated to the official business of the Department.
    (c) This subpart in no way affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act, the Privacy Act or the Trade Secrets Act.
    (d) This subpart is not intended to be relied upon to, and does not, 
create any right or benefit, substantive or procedural, enforceable at 
law by any party against the United States.



Sec. 15.12  Definitions.

    For the purpose of this subpart:
    (a) Agency counsel means the chief legal officer (or his/her 
designee) of an agency within the Department of Commerce.
    (b) Component means Office of the Secretary or an operating unit of 
the Department as defined in Department Organization Order 1-1.

[[Page 137]]

    (c) Demand means a request, order, or subpoena for testimony or 
documents for use in a legal proceeding.
    (d) Department means the United States Department of Commerce and 
its constituent agencies.
    (e) Document means any record, paper and other property held by the 
Department, including without limitation, official letters, telegrams, 
memoranda, reports, studies, calendar and diary entries, maps, graphs, 
pamphlets, notes, charts, tabulations, analyses, statistical or 
informational accumulations, any kind of summaries of meetings and 
conversations, film impressions, magnetic tapes and sound or mechanical 
reproductions.
    (f) Employee means all current or former employees or officers of 
the Department, including commissioned officers of the National Oceanic 
and Atmospheric Administration and any other individual who has been 
appointed by, or subject to the supervision, jurisdiction or control of 
the Secretary of the Department of Commerce.
    (g) General Counsel means the General Counsel of the Department or 
other Department employee to whom the General Counsel has delegated 
authority to act under this subpart.
    (h) Legal proceeding means all pretrial, trial and post trial stages 
of all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before courts, 
commissions, boards or other tribunals, foreign or domestic. This phrase 
includes all phases of discovery as well as responses to formal or 
informal requests by attorneys or others involved in legal proceedings.
    (i) Official business means the authorized business of the 
Department.
    (j) Secretary means the Secretary of the Department of Commerce.
    (k) Solicitor means the Solicitor of the Patent and Trademark 
Office.
    (l) Testimony means a statement in any form, including personal 
appearances before a court or other legal tribunal, interviews, 
depositions, telephonic, televised, or videotaped statements or any 
responses given during discovery or similar proceedings, which response 
would involve more than the production of documents.
    (m) United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.



Sec. 15.13  Demand for testimony or production of documents:
Department policy.

    No employee shall in response to a demand, produce any documents, or 
provide testimony regarding any information relating to, or based upon 
Department of Commerce documents, or disclose any information or produce 
materials acquired as part of the performance of that employee's 
official duties, or because of that employee's official status without 
the prior authorization of the General Counsel, or the Solicitor, or the 
appropriate agency counsel. The reasons for this policy are as follows:
    (a) To conserve the time of Department employees for conducting 
official business;
    (b) To minimize the possibility of involving the Department in 
controversial issues that are not related to the Department's mission;
    (c) To prevent the possibility that the public will misconstrue 
variances between personal opinions of Department employees and 
Department policy;
    (d) To avoid spending the time and money of the United States for 
private purposes;
    (e) To preserve the integrity of the administrative process; and
    (f) To protect confidential, sensitive information and the 
deliberative process of the Department.



Sec. 15.14  Demand for testimony or production of documents:
Department procedures.

    (a) Whenever a demand for testimony or for the production of 
documents is made upon an employee, the employee shall immediately 
notify the General Counsel (Room 5890, U. S. Department of Commerce, 
Washington, DC 20230, (202) 482-1067) or appropriate agency counsel. 
When a demand for testimony or for the production of documents is made 
upon an employee of the Patent and Trademark Office, the employee

[[Page 138]]

should immediately notify the Solicitor, by phone, (703) 305-9035; by 
mailed addressed Solicitor, Box 8, Patent and Trademark Office, 
Washington, DC 20231; or in person to 2121 Crystal Drive, Crystal Park 
2, Suite 918, Arlington, Virginia 22215.
    (b) A Department employee may not give testimony, produce documents, 
or answer inquiries from a person not employed by the Department 
regarding testimony or documents subject to a demand or a potential 
demand under the provisions of this subpart without the approval of the 
General Counsel, or the Solicitor, or the appropriate agency counsel. A 
Department employee shall immediately refer all inquiries and Demands to 
the General Counsel, or the Solicitor, or appropriate agency counsel. 
Where appropriate, the General Counsel, or the Solicitor, or appropriate 
agency counsel, may instruct the Department employee, orally or in 
writing, not to give testimony or produce documents.
    (c)(1) Demand for testimony or documents. A demand for the testimony 
of a Department employee shall be addressed to the General Counsel, Room 
5890, Department of Commerce, Washington, DC 20230 or appropriate agency 
counsel. A demand for testimony of an employee of the Patent and 
Trademark Office shall be mail addressed to the Solicitor, Box 8, Patent 
and Trademark Office, Washington, DC 20231; or in person to 2121 Crystal 
Drive, Crystal Park 2, Suite 918, Arlington, Virginia 22215.
    (2) Subpoenas. A subpoena for testimony by a Department employee or 
a document shall be served in accordance with the Federal Rules of Civil 
or Criminal Procedure or applicable state procedure and a copy of the 
subpoena shall be sent to the General Counsel, or the Solicitor, or 
appropriate agency counsel.
    (3) Affidavit. Except when the United States is a party, every 
demand shall be accompanied by an affidavit or declaration under 28 
U.S.C. 1746 or, if an affidavit is not feasible, a statement setting 
forth the title of the legal proceeding, the forum, the requesting 
party's interest in the legal proceeding, the reason for the demand, a 
showing that the desired testimony or document is not reasonably 
available from any other source, and if testimony is requested, the 
intended use of the testimony, a general summary of the desired 
testimony, and a showing that no document could be provided and used in 
lieu of testimony. The purpose of this requirement is to assist the 
General Counsel, or the Solicitor, or appropriate agency counsel in 
making an informed decision regarding whether testimony or the 
production of a document(s) should be authorized.
    (d) A certified copy of a document for use in a legal proceeding may 
be provided upon written request and payment of applicable fees. Written 
requests for certification shall be addressed to the agency counsel for 
the component having possession, custody, or control of the document. 
Unless governed by another applicable provision of law or component 
regulation, the applicable fee includes charges for certification and 
reproduction as set out in 15 CFR part 4.9. Other reproduction costs and 
postage fees, as appropriate, must also be borne by the requester.
    (e) The Secretary retains the authority to authorize and direct 
testimony in those cases where a statute or Presidential order mandates 
a personal decision by the Secretary.
    (f) The General Counsel, or the Solicitor, or appropriate agency 
counsel may consult or negotiate with an attorney for a party or the 
party if not represented by an attorney, to refine or limit a demand so 
that compliance is less burdensome or obtain information necessary to 
make the determination required by paragraph (b) of this section. 
Failure of the attorney to cooperate in good faith to enable the General 
Counsel, or the Solicitor, or the Secretary, or the appropriate agency 
counsel to make an informed determination under this subpart may serve, 
where appropriate, as a basis for a determination not to comply with the 
demand.
    (g) A determination under this subpart to comply or not to comply 
with a demand is not an assertion or waiver of privilege, lack of 
relevance, technical deficiency or any other ground for noncompliance.
    (h) The General Counsel, or the Solicitor, or appropriate agency 
counsel may waive any requirements set forth

[[Page 139]]

under this section when circumstances warrant.



Sec. 15.15  Procedures when a Department employee receives a subpoena.

    (a) A Department employee who receives a subpoena shall immediately 
forward the subpoena to the General Counsel, or the appropriate agency 
counsel. In the case of an employee of the Patent and Trademark Office, 
the subpoena shall immediately be forwarded to the Solicitor. The 
General Counsel, or the Solicitor, or appropriate agency counsel will 
determine the extent to which a Department employee will comply with the 
subpoena.
    (b) If an employee is served with a subpoena that the General 
Counsel, or the Solicitor, or appropriate agency counsel determines 
should not be complied with, the General Counsel, Solicitor or 
appropriate agency counsel will attempt to have the subpoena withdrawn 
or modified. If this cannot be done, the General Counsel, Solicitor or 
appropriate agency counsel will attempt to obtain Department of Justice 
representation for the employee and move to have the subpoena modified 
or quashed. If, because of time constraints, this is not possible prior 
to the compliance date specified in the subpoena, the employee should 
appear at the time and place set forth in the subpoena. If legal counsel 
cannot appear on behalf of the employee, the employee should produce a 
copy of the Department's regulations and inform the legal tribunal that 
he/she has been advised by counsel not to provide the requested 
testimony and/or produce documents. If the legal tribunal rules that the 
demand in the subpoena must be complied with, the employee shall 
respectfully decline to comply with the demand. United States ex rel. 
Touhy v. Ragen, 340 U. S. 462 (1951).
    (c) Where the Department employee is an employee of the Office of 
the Inspector General, the Inspector General in consultation with the 
General Counsel, will make a determination under paragraphs (a) and (b) 
of this section.



Sec. 15.16  Legal proceedings between private litigants:
Expert or opinion testimony.

    In addition to the policies and procedures as outlined in 
Secs. 15.11 through 15.16, the following applies to legal proceedings 
between private litigants:
    (a) If a Department employee is authorized to give testimony in a 
legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the Department employee. Employees, with or without 
compensation, shall not provide expert testimony in any legal 
proceedings regarding Department information, subjects or activities 
except on behalf of the United States or a party represented by the 
United States Department of Justice. However, upon a showing by the 
requester that there are exceptional circumstances and that the 
anticipated testimony will not be adverse to the interest of the 
Department or the United States, the General Counsel, or the Solicitor, 
or appropriate agency counsel may, in writing grant special 
authorization for the employee to appear and give the expert or opinion 
testimony.
    (b)(1) If, while testifying in any legal proceeding, an employee is 
asked for expert or opinion testimony regarding official DOC 
information, subjects or activities, which testimony has not been 
approved in advance in accordance with the regulations in this subpart, 
the witness shall:
    (i) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by the regulations in this subpart;
    (ii) Request an opportunity to consult with the General Counsel, or 
the Solicitor, or appropriate agency counsel before giving such 
testimony; and
    (iii) Explain that upon such consultation, approval for such 
testimony may be provided.
    (2) If the witness is then ordered by the body conducting the 
proceeding to provide expert or opinion testimony regarding official DOC 
information, subjects or activities without the opportunity to consult 
with either the General Counsel, or the Solicitor, or appropriate agency 
counsel, the witness shall respectfully refuse to provide

[[Page 140]]

such testimony. See United States ex rel. Touhy v. Ragen, 340 U. S. 462 
(1951).
    (c) If an employee is unaware of the regulations in this subpart and 
provides expert or opinion testimony regarding official DOC information, 
subjects or activities in a legal proceeding without the aforementioned 
consultation, the witness shall, as soon after testifying as possible, 
inform the General Counsel, or the Solicitor, or appropriate agency 
counsel that such testimony was given and provide a written summary of 
the expert or opinion testimony provided.

[60 FR 9291, Feb. 17, 1995. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec. 15.17  Demands or requests in legal proceedings for records 
protected by confidentiality statutes.

    Demands in legal proceedings for the production of records, or for 
the testimony of Department employees regarding information protected by 
the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905 or 
other confidentiality statutes, must satisfy the requirements for 
disclosure set forth in those statutes before the records may be 
provided or testimony given. The General Counsel, or the Solicitor, or 
appropriate agency counsel should first determine if there is a legal 
basis to provide the testimony or records sought under applicable 
confidentiality statutes before applying Secs. 15.11 through 15.18. 
Where an applicable confidentiality statute mandates disclosure, 
Secs. 15.11 through 15.18 will not apply.

[60 FR 9291, Feb. 17, 1995. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec. 15.18  Testimony of Department employees in proceedings 
involving the United States.

    The following applies in legal proceedings in which the United 
States is a party:
    (a) A Department employee may not testify as an expert or opinion 
witness for any other party other than the United States.
    (b) Whenever, in any legal proceeding involving the United States, a 
request is made by an attorney representing or acting under the 
authority of the United States, the General Counsel, or the Solicitor, 
or appropriate agency counsel will make all necessary arrangements for 
the Department employee to give testimony on behalf of the United 
States. Where appropriate, the General Counsel, or the Solicitor, or 
appropriate agency counsel may require reimbursement to the Department 
of the expenses associated with a Department employee giving testimony 
on behalf of the United States.



Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

    Source: 53 FR 15548, May 2, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec. 15.21  Purpose.

    This subpart provides implementing policies governing involuntary 
child or child and spousal support allotments for officers of the 
uniformed service of the National Oceanic and Atmospheric Administration 
(NOAA), and prescribes applicable procedures.



Sec. 15.22  Applicability and scope.

    This subpart applies to Commissioned Officers of the NOAA Corps on 
active duty.



Sec. 15.23  Definitions.

    (a) Active duty. Full-time duty in the NOAA Corps.
    (b) Authorized person. Any agent or attorney of any state having in 
effect a plan approved under part D of title IV of the Social Security 
Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery 
of any amounts owed as child or child and spousal support (including, 
when authorized under the state plan, any official of a political 
subdivision); and the court that has authority to issue an order against 
a member for the support and maintenance of a child or any agent of such 
court.
    (c) Child support. Periodic payments for the support and maintenance 
of a child or children, subject to and in accordance with state or local 
law. This includes but is not limited to, payments to provide for 
health, education, recreation, and clothing or to meet

[[Page 141]]

other specific needs of such a child or children.
    (d) Designated official. The official who is designated to receive 
notices of failure to make payments from an authorized person (as 
defined in paragraph (b) of this section). For the Department of 
Commerce this official is the Assistant General Counsel for 
Administration.
    (e) Notice. A court order, letter, or similar documentation issued 
by an authorized person providing notification that a member has failed 
to make periodic support payments under a support order.
    (f) Spousal support. Periodic payments for the support and 
maintenance of a spouse or former spouse, in accordance with state and 
local law. It includes, but is not limited to, separate maintenance, 
alimony while litigation continues, and maintenance. Spousal support 
does not include any payment for transfer of property or its value by an 
individual to his or her spouse or former spouse in compliance with any 
community property settlement, equitable distribution of property, or 
other division of property between spouses or former spouses.
    (g) Support order. Any order for the support of any person issued by 
a court of competent jurisdiction or by administrative procedures 
established under state law that affords substantial due process and is 
subject to judicial review. A court of competent jurisdiction includes: 
(1) Indian tribal courts within any state, territory, or possession of 
the United States and the District of Columbia; and (2) a court in any 
foreign country with which the United States has entered into an 
agreement that requires the United States to honor the notice.



Sec. 15.24  Policy.

    (a) It is the policy of the Department of Commerce to require 
Commissioned Officers of the NOAA Corps on active duty to make 
involuntary allotments from pay and allowances as payment of child, or 
child and spousal, support payments when the officer has failed to make 
periodic payments under a support order in a total amount equal to the 
support payable for two months or longer. Failure to make such payments 
shall be established by notice from an authorized person to the 
designated official. Such notice shall specify the name and address of 
the person to whom the allotment is payable. The amount of the allotment 
shall be the amount necessary to comply with the support order. If 
requested, the allotment may include arrearages as well as amounts for 
current support, except that the amount of the allotment, together with 
any other amounts withheld for support from the officer as a percentage 
of pay, shall not exceed the limits prescribed in section 303 (b) and 
(c) of the Consumer Credit Protection Act (15 U.S.C. 1673). An allotment 
under this subpart shall be adjusted or discontinued upon notice from an 
authorized person.
    (b) Notwithstanding the above, no action shall be taken to require 
an allotment from the pay and allowances of any officer until such 
officer has had a consultation with an attorney from the Office of the 
Assistant General Counsel for Administration, in person, to discuss the 
legal and other factors involved with respect to the officer's support 
obligation and his/her failure to make payments. Where it has not been 
possible, despite continuing good faith efforts to arrange such a 
consultation, the allotment shall start the first pay period beginning 
after 30 days have elapsed since the notice required in paragraph (d)(1) 
of Sec. 15.25 is given to the affected officer.

[53 FR 15548, May 2, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec. 15.25  Procedures.

    (a) Service of notice. (1) An authorized person shall send to the 
designated official a signed notice that includes:
    (i) A statement that delinquent support payments equal or exceed the 
amount of support payable for 2 months under a support order, and a 
request that an allotment be initiated pursuant to 42 U.S.C. 665.
    (ii) A certified copy of the support order.
    (iii) The amount of the monthly support payment. Such amount may 
include arrearages, if a support order specifies the payment of such 
arrearages. The notice shall indicate how much of the amount payable 
shall be

[[Page 142]]

applied toward liquidation of the arrearages.
    (iv) Sufficient information identifying the officer to enable 
processing by the designated official. The following information is 
requested:
    (A) Full name;
    (B) Social Security Number;
    (C) Date of birth; and
    (D) Duty station location.
    (v) The full name and address of the allottee. The allottee shall be 
an authorized person, the authorized person's designee, or the recipient 
named in the support order.
    (vi) Any limitations on the duration of the support allotment.
    (vii) A certificate that the official sending the notice is an 
authorized person.
    (viii) A statement that delinquent support payments are more than 12 
weeks in arrears, if appropriate.
    (2) The notice shall be accomplished by certified or registered 
mail, return receipt requested, or by personal service, upon the 
appropriate designated official, who shall note the date and time of 
receipt on the notice.
    (3) The notice is effective when it is received in the office of the 
designated official.
    (4) When the information submitted is not sufficient to identify the 
officer, the notice shall be returned directly to the authorized person 
with an explanation of the deficiency. However, prior to returning the 
notice if there is sufficient time, an attempt should be made to inform 
the authorized person who caused the notice to be served, that it will 
not be honored unless adequate information is supplied.
    (5) Upon receipt of effective notice of delinquent support payments, 
together with all required supplementary documents and information, the 
designated official shall identify the officer from whom moneys are due 
and payable. The allotment shall be established in the amount necessary 
to comply with the support order and to liquidate arrearages if provided 
by a support order when the maximum amount to be allotted under this 
provision, together with any other moneys withheld for support from the 
officer, does not exceed:
    (i) 50 percent of the officer's disposable earnings for any month 
where the officer asserts by affidavit or other acceptable evidence, 
that he/she is supporting a spouse and/or dependent child, other than a 
party in the support order. When the officer submits evidence, copies 
shall be sent to the authorized person, together with notification that 
the officer's support claim will be honored.
    If the support claim is contested by the authorized person, that 
authorized person may refer this matter to the appropriate court or 
other authority for resolution.
    (ii) 60 percent of the officer's disposable earnings for any month 
where the officer fails to assert by affidavit or other acceptable 
evidence that he/she is supporting a spouse and/or dependent child.
    (iii) Regardless of the limitations above, an additional 5 percent 
of the officer's disposable earnings shall be withheld when it is stated 
in the notice that the officer is in arrears in an amount equivalent to 
12 or more weeks' support.
    (b) Disposable earnings. The following moneys are subject to 
inclusion in computation of the officer's disposable earnings:
    (1) Basic pay.
    (2) Special pay (including enlistment and reenlistment bonuses).
    (3) Accrued leave payments (basic pay portions only).
    (4) Aviation career incentive pay.
    (5) Incentive pay for Hazardous Duty.
    (6) Readjustment pay.
    (7) Diving pay.
    (8) Sea pay.
    (9) Severance pay (including disability severance pay).
    (10) Retired pay (including disability retired pay).
    (c) Exclusions. In determining the amount of any moneys due from or 
payable by the United States to any individual, there shall be excluded 
amounts which are:
    (1) Owed by the officer to the United States.
    (2) Required by law to be deducted from the remuneration or other 
payment involved, including, but not limited to:

[[Page 143]]

    (i) Amounts withheld from benefits payable under Title II of the 
Social Security Act where the withholding is required by law.
    (ii) Federal employment taxes.
    (3) Properly withheld for federal and state income tax purposes if 
the withholding of the amounts is authorized by law and if amounts 
withheld are not greater than would be the case if the individual 
claimed all dependents to which he/she were entitled. The withholding of 
additional amounts pursuant to section 3402(i) of Title 26 of the United 
States Code may be permitted only when the officer presents evidence of 
a tax obligation which supports the additional withholding.
    (4) Deducted for servicemen's Group Life Insurance coverage.
    (5) Advances of pay that may be due and payable by the officer at 
some future date.
    (d) Officer notification. (1) As soon as possible, but not later 
than 15 calendar days after the date of receipt of notice, the 
designated official shall send to the officer, at his/her duty station 
or last known address, written notice:
    (i) That notice has been received from an authorized person, 
including a copy of the documents submitted;
    (ii) Of the maximum limitations set forth, with a request that the 
officer submit supporting affidavits or other documentation necessary 
for determining the applicable percentage limitation;
    (iii) That the officer may submit supporting affidavits or other 
documentation as evidence that the information contained in the notice 
is in error;
    (iv) That by submitting supporting affidavits or other necessary 
documentation, the officer consents to the disclosure of such 
information to the party requesting the support allotment;
    (v) Of the amount or percentage that will be deducted if the officer 
fails to submit the documentation necessary to enable the designated 
official to respond to the notice within the prescribed time limits;
    (vi) That legal counsel will be provided by the Office of the 
Assistant General Counsel for Administration; and
    (vii) Of the date that the allotment is scheduled to begin.
    (2) The officer shall be provided with the following:
    (i) A consultation in person with an attorney from the Office of the 
Assistant General Counsel for Administration, to discuss the legal and 
other factors involved with the officer's support obligation and his/her 
failures to make payment.
    (ii) Copies of any other documents submitted with the notice.
    (3) The Office of the Assistant General Counsel for Administration 
will make every effort to see that the officer receives a consultation 
concerning the support obligation and the consequences of failure to 
make payments within 30 days of the notice required in paragraph (d)(1). 
In the event such consultation is not possible, despite continuing good 
faith efforts to arrange a consultation, no action shall be taken to 
require an allotment from the pay and allowances of any NOAA Corps 
Officer until 30 days have elapsed after the notice described in 
paragraph (d)(1) is given to the affected officer.
    (4) If, within 30 days of the date of the notice, the officer has 
furnished the designated official affidavits or other documentation 
showing the information in the notice to be in error, the designated 
official shall consider the officer's response. The designated official 
may return to the authorized person, without action, the notice for a 
statutorily required support allotment together with the member's 
affidavit and other documentation, if the member submits substantial 
proof of error, such as:
    (i) The support payments are not delinquent.
    (ii) The underlying support order in the notice has been amended, 
superseded, or set aside.
    (e) Absence of funds. (1) When notice is served and the identified 
officer is found not to be entitled to moneys due from or payable by 
NOAA, the designated official shall return the notice to the authorized 
person, and advise that no moneys are due from or payable by NOAA to the 
named individual.
    (2) Where it appears that moneys are only temporarily exhausted or 
otherwise unavailable, the authorized person

[[Page 144]]

shall be fully advised as to why, and for how long, the money will be 
unavailable.
    (3) In instances where the officer separates from active duty 
service, the authorized person shall be informed by the Office of 
Commissioned Personnel, NOAA Corps that the allotment is discontinued.
    (4) Payment of statutorily required allotments shall be enforced 
over other voluntary deductions and allotments when the gross amount of 
pay and allowances is not sufficient to permit all authorized deductions 
and collections.
    (f) Allotment of funds. (1) The authorized person or allottee shall 
notify the designated official promptly if the operative court order 
upon which the allotment is based is vacated, modified, or set aside. 
The designated official shall also be notified of any events affecting 
the allottee's eligibility to receive the allotment, such as the former 
spouse's remarriage, if a part of the payment is for spousal support, 
and notice of a change in eligibility for child support payments under 
circumstances of death, emancipation, adoption, or attainment of 
majority of a child whose support is provided through the allotment.
    (2) An allotment established under this Directive shall be adjusted 
or discontinued upon notice from the authorized person.
    (3) Neither the Department of Commerce nor any officer or employee 
thereof, shall be liable for any payment made from moneys due from, or 
payable by, the Department of Commerce to any individuals pursuant to 
notice regular on its face, if such payment is made in accordance with 
this subpart. If a designated official receives notice based on support 
which, on its face, appears to conform to the law of the jurisdiction 
from which it was issued, the designated official shall not be required 
to ascertain whether the authority that issued the orde had obtained 
personal jurisdiction over the member.
    (4) Effective date of allotment. The allotment shall start with the 
first pay period beginning after the officer has had a consultation with 
an attorney from the Office of the Assistant General Counsel for 
Administration but not later than the first pay period beginning after 
30 days have elapsed since the notice required in paragraph (d)(1) of 
this section is given to the affected officer. The Department of 
Commerce shall not be required to vary its normal NOAA Corps allotment 
payment cycle to comply with the notice.
    (g) Designated official. Notice should be sent to: The Assistant 
General Counsel for Administration, Office of the General Counsel, U.S. 
Department of Commerce, Washington, DC 20230, (202) 377-5387.



 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

    Source: 62 FR 19670, Apr. 23, 1997, unless otherwise noted.



Sec. 15.31  Policy.

    (a) The Department of Commerce may indemnify a present or former 
Department employee who is personally named as a defendant in any civil 
suit in state or federal court, or other legal proceeding seeking 
damages against a present or former Department employee personally, for 
any verdict, judgment or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment or award was taken within the scope of his/her employment and 
that such indemnification is in the interest of the Department as 
determined by the Secretary or his/her designee.
    (b) The Department may settle or compromise a personal damage claim 
against a present or former employee by the payment of available funds 
at any time provided the alleged conduct giving rise to the personal 
property claim was taken within the employee's scope of employment and 
such settlement is in the interest of the Department as determined by 
the Secretary or his/her designee.
    (c) Absent exceptional circumstances, as determined by the Secretary 
or his/her designee, the Department will not consider a request either 
to indemnify or to settle a personal

[[Page 145]]

damage claim before entry of an adverse verdict, judgment or award.
    (d) Any payment under this section either to indemnify a present or 
former Department employee or to settle a personal damage claim shall be 
contingent upon the availability of appropriated funds of the Department 
of Commerce.



Sec. 15.32  Procedures for the handling of lawsuits against Department
employees arising within the scope of their office or employment.

    The following procedures shall be followed in the event that a civil 
action or proceeding is brought, in any court, against a present or 
former employee of the Department (or against his/her estate) for 
personal injury, loss of property or death, resulting from the 
Department employee's activities while acting within the scope of his/
her office or employment:
    (a) After being served with process or pleadings in such an action 
or proceeding, the employee (or the executor(rix) or administrator(rix)) 
of the estate shall within five (5) calendar days of receipt, deliver 
all such process and pleadings or an attested true copy thereof, 
together with a fully detailed report of the circumstances of the 
incident giving rise to the court action or proceeding to the General 
Counsel. Where appropriate, the General Counsel, or his/her designee, 
may request that the Department of Justice provide legal representation 
for the present or former Department employee.
    (b)(1) Only if a present or former employee of the Department has 
satisfied the requirements of paragraph (a) of this section in a timely 
fashion, may the employee subsequently request indemnification to 
satisfy a verdict, judgment, or award entered against that employee.
    (2) No request for indemnification will be considered unless the 
employee has submitted a written request, with appropriate 
documentation, including copies of the verdict, judgment, appeal bond, 
award, or settlement proposal through the employee's supervisory chain 
to the head of the employee's component. The written request will 
include an explanation by the employee of how the employee was working 
within the scope of employment and whether the employee has insurance or 
any other source of indemnification.
    (3) The head of the component or his/her designee will forward the 
employee's request with a recommendation to the General Counsel for 
review. The request for indemnification shall include a detailed 
analysis of the basis for the recommendation. The head of the component 
will also certify to the General Counsel that the component has funds 
available to pay the indemnification.
    (c) The General Counsel or his/her designee will review the 
circumstances of the incident giving rise to the action or proceeding, 
and all data bearing upon the question of whether the employee was 
acting within the scope of his/her employment. Where appropriate, the 
agency shall seek the views of the Department of Justice and/or the U.S. 
Attorney for the district embracing the place where the action or 
proceeding is brought.
    (d) The General Counsel shall forward the request, the accompanying 
documentation, and the General Counsel's recommendation to the Secretary 
or his/her designee for decision.



PART 16_PROCEDURES FOR A VOLUNTARY CONSUMER PRODUCT INFORMATION 
LABELING PROGRAM--Table of Contents



Sec.
16.1  Purpose.
16.2  Description and goal of program.
16.3  Definitions.
16.4  Finding of need to establish a specification for labeling a 
          consumer product.
16.5  Development of performance information labeling specifications.
16.6  Establishment of fees and charges.
16.7  Participation in program.
16.8  Termination of participation.
16.9  Rules governing designated agents.
16.10  The Department of Commerce Mark.
16.11  Amendment or revision of a performance information labeling 
          specification.
16.12  Consumer education.
16.13  Coordination with State and local programs.
16.14  Annual report.

    Authority: Sec. 2, 31 Stat. 1449, as amended; sec. 1, 64 Stat. 371, 
(15 U.S.C. 272); Re-organization Plan No. 3 of 1946, Part VI.

[[Page 146]]


    Source: 42 FR 26648, May 25, 1977, unless otherwise noted.



Sec. 16.1  Purpose.

    The purpose of this part is to establish procedures under which a 
voluntary consumer product information labeling program administered by 
the Department of Commerce will function.



Sec. 16.2  Description and goal of program.

    (a) The Department's Voluntary Consumer Product Information Labeling 
Program makes available to consumers, at the point of sale, information 
on consumer product performance in an understandable and useful form so 
as to facilitate accurate consumer purchasing decisions and enhance 
consumer satisfaction. It also educates consumers, distributors and 
retailers in the use of the product performance information displayed 
and provides manufacturers and other persons who participate in the 
program with an opportunity to convey to the public the particular 
advantages of their products. These objectives are accomplished by:
    (1) Selecting or developing standardized test methods by which 
selected product performance characteristics can be measured;
    (2) Developing labeling methods by which information concerning 
product performance can be transmitted in useful form to consumers at 
the point of sale;
    (3) Encouraging manufacturers and other participants in the program 
voluntarily to test and label their products according to the selected 
or developed methods; and
    (4) Encouraging consumers through various informational and 
educational programs to utilize the product performance information 
provided.
    (b) The program involves voluntary labeling by enrolled participants 
of selected categories of consumer products with information concerning 
selected performance characteristics of those products. The performance 
characteristics selected are those that are of demonstrable importance 
to consumers, that consumers cannot evaluate through mere inspection of 
the product, and that can be measured objectively and reported 
understandably to consumers. The consumer products covered include those 
for which incorrect purchase decision can result in financial loss, 
dissatisfaction, or inconvenience. The program seeks to avoid the 
duplication of other Federal programs under which performance 
characteristics are labeled by exempting those performance 
characteristics from this program. However, where the Federal agency 
concerned agrees, the Department of Commerce may include information 
about those performance characteristics in CPILP labels if, by doing so, 
product comparison at the point of sale is simplified for consumers, and 
the complexity of product labeling is reduced for the manufacturers by 
enabling them to comply with the labeling requirements of other Federal 
agencies through participation in CPILP.
    (c) For selected categories of consumer products, the program 
includes advertising guidelines covering situations where quantitative 
performance values are stated in advertising or where qualitative 
comparisons are made of the performance of different products.

[42 FR 26648, May 25, 1977, as amended at 43 FR 8255, Mar. 1, 1978]



Sec. 16.3  Definitions.

    (a) The term Secretary means the Secretary of Commerce or her 
designee.
    (b) The term consumer means the first person who purchases a 
consumer product for purposes other than resale.
    (c) The term participant means a manufacturer, assembler or private 
brand labeler of consumer products or an importer of such products for 
resale and who participates in the program.
    (d) The term consumer product means any article produced or 
distributed for sale to a consumer for the use, consumption, or 
enjoyment of such consumer. The term does not include products 
customarily intended primarily for business, commercial, or industrial 
use.
    (e) The term person means an individual; a manufacturer; 
distributor; retailer; importer; private brand labeler; government 
agency at the Federal (including any agency of the Department

[[Page 147]]

of Commerce), State and local level; consumer organization; trade 
association; standards writing body; professional society; testing 
laboratory; or educational institution.
    (f) The term performance characteristic means a performance 
characteristic of a consumer product that can be measured in an 
objective manner with respect to a given consumer product.
    (g) The term Specification means a Performance Information Labeling 
Specification developed under Sec. 16.5.
    (h) The term label means printed matter affixed to or otherwise 
provided with a consumer product and containing all of the performance 
characteristics as prescribed by the Specification applicable to that 
product.
    (i) The term designated agent means a person as defined in paragraph 
(e) of this section, who has been designated by the Secretary to carry 
out appropriate operational procedures on behalf of more than one 
participant in this program in accordance with rules set out under 
Sec. 16.9.



Sec. 16.4  Finding of need to establish a specification for labeling 
a consumer product.

    (a) Any person may request the Secretary to find that there is a 
need to label a particular consumer product with information concerning 
one or more specific performance characteristics of that product.
    (b) Such a request shall be in writing and will, to the extent 
practicable, include the following information:
    (1) Identification of the consumer product;
    (2) Extent that the product identified in paragraph (b)(1) of this 
section is used by the public and, if known, what the production or 
sales volume is of such product;
    (3) Nature and extent of difficulty experienced by consumers in 
making informed purchase decisions because of a lack of knowledge 
regarding the performance characteristics of the identified consumer 
product;
    (4) Potential or actual loss to consumers as a result of an 
incorrect decision based on an inadequate understanding of the 
performance characteristics of the identified consumer product;
    (5) Extent of incidence of consumer complaints arising from or 
reasonably traceable to lack of knowledge regarding the performance 
characteristics of the identified consumer product;
    (6) If known, whether there currently exist test methods which could 
be used to test the performance characteristics of the identified 
consumer product and an identification of those test methods;
    (7) Reasons why it is felt, in cases where existing test methods are 
identified in responding to paragraph (b)(6) of this section, that such 
test methods are suitable for making objective measurements of the 
performance characteristics of the identified consumer product; and
    (8) Estimated cost to participants to test and label the product.
    (c) The Secretary may ask for more information to support a request 
made under paragraph (a) of this section if she feels it is necessary to 
do so, or, if she deems it to be in the public interest, may develop 
such information herself as by consultation on a one-time basis with 
consumers, consumer organizations, and others. The Secretary shall act 
expeditiously on all requests and shall notify the requester of her 
decision in writing. If the Secretary determines that there is no need 
to establish a Specification for labeling the requested consumer product 
performance characteristics, or because of a lack of resources, she will 
decline to act further on the request. In those instances where the 
Secretary declines a request, she shall state the reasons for so 
declining.
    (d) If the Secretary finds that a need exists to establish a 
Specification for labeling a consumer product under this program, she 
shall publish a notice in the Federal Register setting out such finding 
and its basis and stating that she is developing a proposed 
Specification in accordance with Sec. 16.5.



Sec. 16.5  Development of performance information labeling
specifications.

    (a) If the Secretary makes a finding of need pursuant to Sec. 16.4, 
she will publish a proposed Performance Information Labeling 
Specification in the Federal Register with a notice giving the

[[Page 148]]

complete text of the proposed Specification and any other pertinent 
information. The notice will invite any interested person to submit 
written comments on the proposed Specification within 45 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 an 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.
    (b) Each Specification shall as a minimum include:
    (1) A description of the performance characteristics of the consumer 
product covered;
    (2) An identification by reference of the test methods to be used in 
measuring the performance characteristics. The test methods, where they 
exist and are deemed appropriate for inclusion in the particular 
Specification involved, shall be those which are described in 
nationally-recognized voluntary standards. Where appropriate test 
methods do not exist, they will be developed by the Department of 
Commerce in cooperation with interested parties and set out in full in 
the Specification;
    (3) A prototype label and directions for displaying the label on or 
with the consumer product concerned. Such directions will not prohibit 
the display of additional information by the participant on space 
adjacent to the marked boundaries of the label; and
    (4) Conditions of participation.
    (c) The Secretary, after consideration of all written and oral 
comments and other materials received in accordance with paragraph (a) 
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 prospective participant in the 
program desiring voluntarily to use the Department of Commerce Mark 
developed under Sec. 16.10 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. 16.6  Establishment of fees and charges.

    (a) The Secretary in conjunction with the use of the Working Capital 
Fund of the National Institute of Standards & Technology, as authorized 
under section 12 of the Act of March 3, 1901, as amended (15 U.S.C. 
278b), for this program, shall establish fees and charges for use of the 
Department of Commerce Label and Mark on each product. Such fees and 
charges shall be related to the number of units of products labeled, 
where appropriate. The fees and charges established by the Secretary, 
which may be revised by her when she deems it appropriate to do so, 
shall be in amounts calculated to make the operation of this program as 
self-sufficient as reasonable. A separate notice will be published in 
the Federal Register simultaneously with the notice of each proposed 
Specification referred to in Sec. 16.5(a). Such notice will set out a 
schedule of estimated fees and charges the Secretary proposes to 
establish. The notice would be furnished for informational and guidance 
purposes only in order that the public may evaluate the proposed 
Specification in light of the expected fees to be charged.
    (b) At such time as the Secretary publishes the notice announcing 
the final Specification referred to in Sec. 16.5(c)(1), she shall 
simultaneously publish a separate notice in the Federal Register setting 
forth the final schedule of fees that will be charged participants in 
the program. The effective date of such final schedule of fees shall be 
the same as the date on which the final Specification takes effect.
    (c) Revisions, if any, to the fees and charges established by the 
Secretary under paragraph (b) of this section shall be published in 
subsequent Federal Register notices and shall take

[[Page 149]]

effect not less than thirty (30) days after the date of publication of 
such notice.
    (d) The establishment of fees and charges under this section may, at 
any time, be suspended by the Secretary for any length of time.

[42 FR 26648, May 25, 1977, as amended at 42 FR 57686, Nov. 4, 1977; 55 
FR 38315, Sept. 18, 1990]



Sec. 16.7  Participation in program.

    (a) Any manufacturer, assembler, or private brand labeler of 
consumer products or importer of such products for resale, desiring to 
participate in this program will so notify the Secretary. The 
notification will identify the particular Specification to be used and 
the prospective participant's identification and model numbers for the 
products to be labeled. The notification must include a statement that 
if accepted as a participant in the program by the Secretary, the 
prospective participant will:
    (1) Abide by all conditions imposed by these procedures:
    (2) Abide by the conditions contained in the Specification, as 
prescribed in paragraph (d) of this section;
    (3) Pay the fees and charges established by the Secretary; and
    (4) Desist from using the Department of Commerce label and Mark if 
his participation is terminated under Sec. 16.8.
    (b) The Secretary shall act expeditiously on all requests to 
participate in the program and shall notify each prospective participant 
of her decision in writing. In those instances where the Secretary 
declines a request, she shall state the reasons for so declining.
    (c) If a prospective participant seeking to participate in the 
program is notified by the Secretary that she proposes to deny that 
prospective participant the right to participate, that prospective 
participant shall have thirty (30) days from the receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such prospective participant in the event that 
he does not appeal such notification by the end of the thirty (30) day 
period. If however, such prospective participant requests a hearing 
within that thirty (30) day period, the Secretary's proposed denial 
shall be stayed pending the outcome of the hearing held pursuant to 5 
U.S.C. 556.
    (d) The conditions set out in each Specification will include, but 
not be limited to, the following:
    (1) Prior to the use of a Label, the participant 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 Secretary. Such measurement data will be kept on 
file by the participant or his agent for two years after that product is 
no longer manufactured unless otherwise provided in the Specification.
    (2) The participant will describe the test results on the Label as 
prescribed in the Specification.
    (3) The participant will display or arrange to display, in 
accordance with the appropriate Specification, the Label on or with each 
individual product of the type covered except for units exported from 
the U.S. Participants who utilized more than one brand name may 
participate by labeling some or all of the brand names. All models with 
the same brand name must be included in the program unless they are for 
export only.
    (4) The participant agrees at his expense to comply with any 
reasonable request of the Secretary to have consumer products 
manufactured, assembled, imported, or privately brand labeled by him 
tested to determine that testing has been done according to the relevant 
Specification.
    (5) Participants may reproduce the Department of Commerce Label and 
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 and is not combined or associated directly with any other 
mark or logo.



Sec. 16.8  Termination of participation.

    (a) The Secretary upon finding that a participant is not complying 
with the conditions set out in these procedures or in a Specification 
may terminate upon 30 days notice the participant's right to continue 
his participation in

[[Page 150]]

the program: Provided, That the participant shall first by given an 
opportunity to show cause why the participation should not be 
terminated.
    (b) Upon receipt of a notice from the Secretary of the proposed 
termination, which notice shall set forth the reasons for such proposed 
termination, the participant shall have thirty (30) days from the date 
of receipt of such notification to request a hearing under the 
provisions of 5 U.S.C. 556. The Secretary's proposed termination shall 
become final through the issuance of a written decision to the 
participant in the event such participant does not appeal the proposed 
termination within the thirty (30) day period. If, however, the 
participant requests a hearing within the thirty (30) day period, the 
Secretary's proposed termination shall be stayed pending the outcome of 
the hearing held pursuant to 5 U.S.C. 556.
    (c) A participant may at any time terminate his participation and 
responsibilities under this program with regard to a specific type of 
product by giving written notice to the Secretary that he has 
discontinued use of the Department of Commerce Label and Mark for all 
consumer products of the type involved.



Sec. 16.9  Rules governing designated agents.

    (a) The following rules, requirements and tasks shall be applicable 
with respect to the seeking of designated agent status and the 
performance of that role after such status has been obtained. Each 
person desiring to be designated as a designated agent under this 
program shall:
    (1) Make written application to the Secretary;
    (2) Provide appropriate information showing his qualifications to 
represent members within a given product area and that more than one 
prospective participant in that product area is agreeable to such 
representation; and
    (3) Agree to service any participant in this program in the agent's 
cognizant product area whether or not such participant is a member of 
the organization or body which that agent represents.
    (b) The Secretary may require a person seeking designated agent 
status to supply further information before granting such status to that 
person. The Secretary will notify each person seeking designated agent 
status, in writing, as expeditiously as possible after evaluating such 
person's application.
    (c) Each person granted designated agent status shall:
    (1) Provide the Secretary with a list of the participants that the 
designated agent services under the program. The Secretary shall also be 
provided an updated list as soon thereafter as may be practicable 
whenever there are any changes in the list;
    (2) Collect fees and charges from the participants serviced under 
this program, consolidate such sums, and transmit those fees and charges 
required under Sec. 16.6 to the Secreatry;
    (3) Distribute Department of Commerce Marks developed under 
Sec. 16.10 or instructions for the printing of such Marks to the 
participants that the designated agent services under this program;
    (4) Gather and consolidate such statistical information as may be 
required by the Secretary from individual participants serviced;
    (5) Provide the Secretary with reports, including the consolidate 
statistical information referred to in paragraph (c)(4) of this section, 
as may be called for by her, relative to the activities of the 
participants the designated agent is servicing; and
    (6) Perform any additional tasks mutually agreed upon by the 
designated agent and the Secretary.
    (d) If a person seeking designated agent status is notified by the 
Secretary that she proposes to deny that person such status, that person 
shall have thirty (30) days from the date of receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such person in the event that he does not 
appeal such notification by the end of that thirty (30) day period. If, 
however, such person requests a hearing within that thirty (30) day 
period, the Secretary proposed denial shall be stayed pending the 
outcome of the hearing held pursuant to 5 U.S.C. 556.

[[Page 151]]

    (e) If the Secretary finds that a designated agent has violated the 
terms of paragraph (c) of this section, she may, after consultations 
with such designated agent, notify such person that she proposes to 
revoke his status as a designated agent.
    (f) Upon receipt of a notice from the Secretary of the proposed 
revocation, which notice shall set forth the reasons for such proposed 
revocation, the designated agent shall have thirty (30) days from the 
date of receipt of such notification to request a hearing under the 
provisions of U.S.C. 556. The Secretary's proposed revocation shall 
become final through the issuance of a written decision to the 
designated agent in the event such designated agent does not appeal the 
proposed revocation within that thirty (30) day period. If, however, the 
designated agent requires a hearing within that thirty (30) day period, 
the Secretary's proposed revocation shall be stayed pending the outcome 
of the hearing held pursuant to 5 U.S.C. 556.



Sec. 16.10  The Department of Commerce Mark.

    The Department of Commerce shall develop a Mark which shall be 
registered in the U.S. Patent and Trademark Office under 15 U.S.C. 1054 
for use on each Label described in a Specification.



Sec. 16.11  Amendment or revision of a performance information 
labeling specification.

    The Secretary may by order amend or revise any Specification 
published under Sec. 16.5. The procedure applicable to the establishment 
of a Specification under Sec. 16.5 shall be followed in amending or 
revising such Specification. Such amendment or revision shall not apply 
to consumer products manufactured prior to the effective date of the 
amendment or revision.



Sec. 16.12  Consumer education.

    The Secretary, in close cooperation and coordination with interested 
Government agencies, appropriate trade associations and industry 
members, consumer organizations, and other interested persons shall 
carry out a program to educate consumers relative to the significance of 
the labeling program. Some elements of this program shall also be 
directed toward informing retailers and other interested groups about 
the program.



Sec. 16.13  Coordination with State and local programs.

    The Secretary 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 uniformity in State and local programs for the 
labeling of performance characteristics of consumer products.



Sec. 16.14  Annual report.

    The Secretary will prepare an annual report of activities under the 
program, including an evaluation of the program and a list of 
participants, designated agents, and types of consumer products covered.



PART 17_PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-
FEDERAL ENTITIES--Table of Contents



Sec.
17.1  Scope.
17.2  Definitions.
17.3  Exchange of Federal laboratory personnel with recipients of 
          Federal funding.
17.4  Personnel exchanges from a Federal laboratory.
17.5  Personnel exchanges to a Federal laboratory.

    Authority: 15 U.S.C. 3712.

    Source: 81 FR 73025, Oct. 24, 2016, unless otherwise noted.



Sec. 17.1  Scope.

    (a) The Stevenson-Wydler Technology Innovation Act of 1980, Public 
Law 96-480, as amended (codified at title 15 of the United States Code 
(U.S.C.), section 3701 et seq.) (the Stevenson-Wydler Act), sets forth a 
national policy to renew, expand, and strengthen cooperation among 
academia, Federal laboratories, labor, and industry, in forms including 
personnel

[[Page 152]]

exchanges (15 U.S.C. 3701(3)). One proven method to ensure that Federal 
innovations are passed to industry and the public is to encourage 
frequent interactions among Federal laboratories, academic institutions, 
and industry, including both large and small businesses. In accordance 
with applicable ethics regulations and Agency policies, exchanges of 
personnel between Federal laboratories and outside collaborators should 
be encouraged (15 U.S.C. 3702(5)). Models that include Federal funding, 
as well as those that are executed without Federal funding, are 
encouraged.
    (b) This part implements 15 U.S.C. 3712 and provides clarification 
regarding the appropriate use of personnel exchanges in relation to 
Federal laboratory Cooperative Research and Development Agreements 
(CRADAs) under the authority of 15 U.S.C. 3710a.
    (c) This part is applicable to exchanges of personnel between 
Federal laboratories and parties to a CRADA under 15 U.S.C. 3710a(a)(1).



Sec. 17.2  Definitions.

    (a) The term funding agreement shall have the meaning according to 
it under 35 U.S.C. 201(b).
    (b) The term contractor shall have the meaning according to it under 
35 U.S.C. 201(c).
    (c) The term Federal laboratory shall have the meaning according to 
it under 15 U.S.C. 3703(4).



Sec. 17.3  Exchange of Federal laboratory personnel with recipients
of Federal funding.

    (a) In accordance with 15 U.S.C. 3710a(b)(3)(A) and 3710a(d)(1), a 
Federal laboratory may provide personnel, services, property, and other 
resources to a collaborating party, with or without reimbursement (but 
not funds to non-Federal parties) for the conduct of specified research 
or development efforts under a CRADA which are consistent with the 
missions of the Federal laboratory. The existence of a funding agreement 
between a Federal laboratory and a contractor shall not preclude the 
Federal laboratory from using its authority under 15 U.S.C. 3710a to 
enter into a CRADA with the contractor as a collaborating party for the 
conduct of specified research or development efforts, where the director 
of the Federal laboratory determines that the technical subject matter 
of the funding agreement is sufficiently distinct from that of the 
CRADA. In no event shall a contractor which is a collaborating party 
transfer funds to a Federal laboratory under a CRADA using funds awarded 
to the contractor by that laboratory.
    (b) (1) A Federal laboratory may enter into a CRADA with a 
contractor as a collaborating party for the purpose of exchange of 
personnel for the conduct of specified research or development efforts 
where the determination required under paragraph (a) of this section 
could not be made, provided that:
    (i) The CRADA includes at least one collaborating party in addition 
to the Federal laboratory and that contractor; and
    (ii) The Federal laboratory shall not provide services, property or 
other resources to that contractor under the CRADA.
    (2) Where a Federal laboratory enters into a CRADA with a contractor 
under this paragraph (b), the terms of that contractor's funding 
agreement shall normally supersede the terms of the CRADA, to the extent 
that any individual terms conflict, as applied to that contractor and 
the Federal laboratory only.
    (c) In making the determination required under paragraph (a) of this 
section, the director of a Federal laboratory may consider factors 
including the following:
    (1) Whether the conduct of specified research or development efforts 
under the CRADA would require the contractor to perform tasks identical 
to those required under the funding agreement;
    (2) Whether existing intellectual property to be provided by the 
Federal laboratory or the contractor under the CRADA is the same as that 
provided under, or referenced in, the funding agreement;
    (3) Whether the contractor's employees performing the specified 
research or development efforts under the

[[Page 153]]

CRADA are the same employees performing the tasks required under the 
funding agreement; and
    (4) Whether services, property or other resources contemplated by 
the Federal laboratory to be provided to the contractor for the 
specified research or development efforts under the CRADA would 
materially benefit the contractor in the performance of tasks required 
under the funding agreement.



Sec. 17.4  Personnel exchanges from a Federal laboratory.

    (a) For personnel exchanges in which a Federal laboratory maintains 
funding for Federal personnel provided to a collaborating party--
    (1) in accordance with 15 U.S.C. 3710a(b)(3)(A), a Federal 
laboratory may exchange personnel with a collaborating party for the 
purposes of specified scientific or technical research towards a mutual 
goal consistent with the mission of the Agency, where no invention 
currently exists, or
    (2) in accordance with 15 U.S.C. 3710a(b)(3)(C), a Federal 
laboratory may exchange personnel with a non-Federal collaborating party 
for the purposes of developing or commercializing an invention in which 
the Federal government has an ownership interest, including an invention 
made by an employee or former employee while in the employment or 
service of the Federal government, and such personnel exchanged may 
include such employee who is an inventor.
    (i) Funding may be provided under a CRADA by the non-Federal 
collaborating party to the Federal laboratory for the participation of 
the Federal employee in developing or commercializing an invention, 
including costs for salary and other expenses, such as benefits and 
travel.
    (ii) Royalties from inventions received through a license agreement 
negotiated with the Federal laboratory and paid by the Federal 
laboratory to an inventor who is a Federal employee are considered 
Federal compensation.
    (3) Where an employee leaves Federal service in order to receive 
salary or other compensation from a non-Federal organization, a Federal 
laboratory may use reinstatement authority in accordance with 5 CFR 
315.401, or other applicable authorities, to rehire the former Federal 
employee at the conclusion of the exchange.



Sec. 17.5  Personnel exchanges to a Federal laboratory.

    For exchanges in which a Federal laboratory provides funds for the 
non-federal personnel--
    (a) Outside personnel with expertise in scientific commercialization 
may be brought in to a Federal laboratory through the Presidential 
Innovation Fellows program or related programs (see 5 CFR 213.3102(r)) 
for Entrepreneur-In-Residence programs or similar, related programs run 
by the General Services Administration (GSA) or other Federal Agencies.
    (b) A laboratory may engage with the GSA or other relevant Agency to 
transfer funding for exchanged personnel, and may work with such agency 
to select and place Entrepreneurs-In-Residence at the laboratory for the 
purposes of evaluating the laboratory's technologies, and providing 
technical consulting to facilitate readying a technology for 
commercialization by an outside entity.



PART 18_ATTORNEY'S FEES AND OTHER EXPENSES--Table of Contents



                           General Provisions

Sec.
18.1  Purpose of these rules.
18.2  Definitions.
18.3  When the Act applies.
18.4  Proceedings covered.
18.5  Eligibility of applicants.
18.6  Standards for awards.
18.7  Allowable fees and expenses.
18.8  Rulemaking on maximum rates for attorney fees.
18.9  Awards against other agencies.
18.10  Delegations of authority.

                  Information Required from Applicants

18.11  Contents of application.
18.12  Net worth exhibit.
18.13  Documentation of fees and expenses.
18.14  When an application may be filed.

                 Procedures for Considering Applications

18.15  Filing and service of documents.
18.16  Answer to application.
18.17  Reply.
18.18  Comments by other parties.
18.19  Settlement.

[[Page 154]]

18.20  Further proceedings.
18.21  Decision.
18.22  Agency review.
18.23  Judicial review.
18.24  Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

    Source: 47 FR 13510, Mar. 31, 1982, unless otherwise noted.

                           General Provisions



Sec. 18.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
the Department of Commerce (the word Department includes its component 
agencies). An eligible party may receive an award when it prevails over 
the Department, unless the Department's position in the proceeding was 
substantially justified or special circumstances make an award unjust. 
The rules in this part describe the parties that are eligible for awards 
and the Department's proceedings that are covered by the Act. They also 
explain how to apply for awards, and the procedures and standards that 
the Department will use to make them.



Sec. 18.2  Definitions.

    As used in this part:
    (a) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or renewing a license.
    (b) Adjudicative officer means the official, without regard to 
whether the official is designated as an administrative law judge, a 
hearing officer or examiner, or otherwise, who presided at the adversary 
adjudication.



Sec. 18.3  When the Act applies.

    The Act applies to any adversary adjudication pending or commenced 
before the Department on or after August 5, 1985. It also applies to any 
adversary adjudication commenced on or after October 1, 1984, and 
finally disposed of before August 5, 1985, provided that an application 
for fees and expenses, as described in Secs. 18.11 through 18.14 of this 
part, has been filed with the Department within 30 days after August 5, 
1985, and to any adversary adjudication pending on or commenced on or 
after October 1, 1981, in which an application for fees and other 
expenses was timely filed and was dismissed for lack of jurisdiction.

[53 FR 6798, Mar. 3, 1988]



Sec. 18.4  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department and to appeals of decisions of contracting officers of the 
Department made pursuant to section 6 of the Contract Disputes Act of 
1978 (41 U.S.C. 605) before agency boards of contract appeals as 
provided in section 8 of that Act (41 U.S.C. 607). Adversary 
adjudications conducted by the Department are adjudications under 5 
U.S.C. 554 in which the position of this or any other agency of the 
United States, or any component of an agency, is presented by an 
attorney or other representative who enters an appearance and 
participates in the proceeding. Pursuant to section 8(c) of the Contract 
Disputes Act (41 U.S.C. 607(c)), the Department has arranged for appeals 
from decisions by contracting officers of the Department to be decided 
by the General Services Administration Board of Contract Appeals. This 
Board, in accordance with its own procedures, shall be responsible for 
making determinations on applications pursuant to the Act relating to 
appeals to the Board from decisions of contracting officers of the 
Department. Such determinations are final, subject to appeal under 
Sec. 18.23. Any proceeding in which the Department may prescribe a 
lawful present or future rate is not covered by the Act. Proceedings to 
grant or renew licenses are also excluded, but proceedings to modify, 
suspend, or revoke licenses are covered if they are otherwise 
``adversary adjudications.'' The Department proceedings covered are:
    (1) Department-wide. (i) Title VI Civil Rights hearings conducted by 
the Department under 42 U.S.C. 2000d-1 and 15 CFR 8.12(d).

[[Page 155]]

    (ii) Handicap discrimination hearings conducted by the Department 
under 29 U.S.C. 794(a) and 15 CFR 8.12(d).
    (2) National Oceanic and Atmospheric Administration (``NOAA'')
    (i) Proceedings concerning suspension, revocation, or modification 
of a permit or license issued by NOAA.
    (ii) Proceedings to assess civil penalties under any of the statutes 
administered by NOAA.
    (3) International Trade Administration. Enforcement proceedings 
under the AntiBoycott provisions of the Export Administration Act of 
1979, 50 U.S.C. app. 2407.
    (4) Patent and Trademark Office. Disbarment proceedings of attorneys 
and agents under 35 U.S.C. 32.
    (b) The Department may also designate a proceeding not listed in 
paragraph (a) of this section as an adversary adjudication for purposes 
of the Act by so stating in an order initiating the proceeding or 
designating the matter for hearing. The Department's failure to 
designate a proceeding as an adversary adjudication shall not preclude 
the filing of an application by a party who believes the proceeding is 
covered by the Act; whether the proceeding is covered will then be an 
issue for resolution in proceedings on the application.
    (c) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec. 18.5  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions 
of eligibility set out in this part.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the adjudicative officer determines that such treatment 
would be unjust and contrary to the purposes of the Act in light of the 
actual relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one

[[Page 156]]

or more other persons or entities that would be ineligible is not itself 
eligible for an award.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec. 18.6  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding, or in a significant 
and discrete substantive portion of the proceedings, unless the position 
of the Department over which the applicant has prevailed was 
substantially justified. The position of the Department includes, in 
addition to the position taken by the Department in the adversary 
adjudication, the action or failure to act by the Department upon which 
the adversary adjudication is based. The burden of proof that an award 
should not be made to an eligible prevailing applicant because the 
Department's position was substantially justified is on the agency 
counsel.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.7  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under this rule may 
exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Department pays expert witnesses. 
However, an award may also include the reasonable expenses of the 
attorney, agent, or witness as a separate item, if the attorney, agent, 
or witness ordinarily charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the adjudicative officer shall 
consider the following:
    (1) If the attorney, agent, or witness is in private practice, his 
or her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceedings; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project, or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.8  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Department may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than the ceiling set forth in Sec. 18.7(b) in some or all of the types 
of proceedings covered by this part. The Department will conduct any 
rulemaking proceedings for this purpose under the informal rulemaking 
procedures of the Administrative Procedure Act.
    (b) Any person may file with the Department a petition for 
rulemaking to increase the maximum rate for attorney fees. The petition 
should be sent to the General Counsel, Department of Commerce, 14th 
Street and Constitution Avenue, Room 5870, Washington, D.C. 20230. The 
petition should identify the rate the petitioner believes the Department 
should establish and the types of proceedings in which the rate should 
be used. It should also explain

[[Page 157]]

fully the reasons why higher rate is warranted. The Department will 
respond to the petition within 60 days after it is filed, by initiating 
a rulemaking proceeding, denying the petition, or taking other 
appropriate action.



Sec. 18.9  Awards against other agencies.

    If an applicant is entitled to an award because it prevailed over 
another agency of the United States that participated in a proceeding 
before the Department and took a position that was not substantially 
justified, the award or an appropriate portion of the award shall be 
made against that agency.



Sec. 18.10  Delegations of authority.

    The Secretary delegates to the General Counsel the authority to take 
final action on matters pertaining to the Act.

                  Information Required from Applicants



Sec. 18.11  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the Department or other agency in the 
proceeding that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $2 million (if an individual) or 
$7 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)), or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) and 
includes a copy of its charter or articles of incorporation.
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the adjudicative officer to consider in determining 
whether and in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.12  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 18.5(f) of this part) when the proceeding was initiated. 
Unless regulations issued by a component of the Department establish 
particular requirements, the exhibit may be in any form convenient to 
the applicant that provides full disclosure of the applicant's and its 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards in this part. The 
adjudicative officer may require an applicant to file additional 
information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential

[[Page 158]]

Financial Information,'' accompanied by a motion to withhold the 
information from public disclosure. The motion shall describe the 
information sought to be withheld and explain, in detail, why it falls 
within one or more of the specific exemptions from mandatory disclosure 
under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public 
disclosure of the information would adeversely affect the applicant, and 
why disclosure is not required in the public interest. The material in 
question shall be served on counsel representing the agency against 
which the applicant seeks an award, but need not be served on any other 
party to the proceeding. If the adjudicative officer finds that the 
information should not be withheld from disclosure, it shall be placed 
in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
Department's established procedures under the Freedom of Information Act 
(15 CFR Part 4).

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.13  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project, or similar matter for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The adjudicative officer may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.



Sec. 18.14  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after the 
Department's final disposition of the proceeding.
    (b) For purposes of this rule, final disposition means the date on 
which a decision or order disposing of the merits of the proceeding or 
any other complete resolution of the proceeding, such as a settlement or 
voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
    (c) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy. When the United States appeals the underlying 
merits of an adversary adjudication to a court, no decision on an 
application for fees and other expenses in connection with that 
adversary adjudication shall be made until a final and unreviewable 
decision is rendered by the court on the appeal or until the underlying 
merits of the case have been finally determined pursuant to the appeal.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

                 Procedures for Considering Applications



Sec. 18.15  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the proceeding, 
except as provided in Sec. 18.12(b) for confidential financial 
information.



Sec. 18.16  Answer to application.

    (a) Within 30 calendar days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing (an extension for an additional 30 days

[[Page 159]]

is available as a matter of right) or files a statement of intent to 
negotiate under paragraph (b) of this section, failure to file an answer 
within the 30 calendar day period may be treated as a consent to the 
award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 18.20.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.17  Reply.

    Within 15 calendar days after service of an answer, the applicant 
may file a reply. If the reply is based on any alleged facts not already 
in the record of the proceeding, the applicant shall include with the 
reply either supporting affidavits or a request for further proceedings 
under Sec. 18.20.



Sec. 18.18  Comments by other parties.

    Any party to a proceeding other than the applicant and the agency 
counsel may file comments on an application within 30 calendar days 
after it is served or on an answer within 15 calendar days after it is 
served. A commenting party may not participate further in proceedings on 
the application unless the adjudicative officer determines that the 
public interest requires such participation in order to permit full 
exploration of matters raised in the comments.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.19  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded, in accordance with the 
component agency's standard settlement procedure. If a prevailing party 
and agency counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.20  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or on his or her own initiative, the adjudicative 
officer may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or, as to issues other 
than substantial justification (such as the applicant's eligibility or 
substantiation of fees and expenses), pertinent discovery or an 
evidentiary hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application, and shall be conducted as promptly as possible. Whether or 
not the position of the agency was substantially justified shall be 
determined on the basis of the administrative record, as a whole, which 
is made in the adversary adjudication for which fees and other expenses 
are sought.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.21  Decision.

    The adjudicative officer shall issue an initial decision on the 
application

[[Page 160]]

within 30 calendar days after completion of proceedings on the 
application. The initial decision of the adjudicative officer shall 
include written findings and conclusions on the applicant's eligibility 
and status as a prevailing party, and an explanation of the reasons for 
any difference between the amount requested and the amount awarded. The 
decision shall also include, if at issue, findings on whether the 
Department's position was substantially justified, whether the applicant 
unduly protracted the proceedings, or whether special circumstances make 
an award unjust. If the applicant has sought an award against more than 
one agency, the decision shall allocate responsibility for payment of 
any award made among the agencies, and shall explain the reasons for the 
allocation made.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec. 18.22  Agency review.

    Either the applicant or agency counsel may file a petition for 
review of the initial decision on the fee application, or the Department 
may decide to review the decision on its own initiative. The petition 
must be filed with the General Counsel, Office of the Assistant General 
Counsel for Administration, Rm. 5882, U.S. Department of Commerce, 14th 
Street and Pennsylvania Avenue NW., Washington, DC 20230, not later than 
30 calendar days after the initial decision is issued. For purposes of 
this section, a document will be considered filed with the General 
Counsel as of the date of the postmark (or for government penalty mail, 
as shown by a certificate of mailing), if mailed, or if not mailed, as 
of the date actually delivered to the Office of General Counsel. A 
petition for review must be accompanied by a full written statement in 
support thereof, including a precise statement of why the petitioner 
believes the initial decision should be reversed or modified, and proof 
of service upon all parties. A response to the petition may be filed by 
another party to the proceeding and must be filed with the General 
Counsel at the above address not more than 30 calendar days after the 
date of service of the petition for review. The General Counsel may 
request any further submissions deemed helpful in resolving the petition 
for review. If neither the applicant nor agency counsel seeks review and 
the Department does not take review on its own initiative, the initial 
decision on the application shall become a final decision of the 
Department 30 calendar days after it is issued. Whether to review a 
decision is a matter within the discretion of the General Counsel. If 
review is taken, the General Counsel will issue the Department's final 
decision on the application or remand the application to the 
adjudicative officer for further proceedings. The standard of review 
exercised by the General Counsel shall be that which was required for 
the highest level of Departmental review which could have been exercised 
on the underlying covered proceeding.

[53 FR 6799, Mar. 3, 1988]



Sec. 18.23  Judicial review.

    Judicial review of final agency decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 18.24  Payment of award.

    An applicant seeking payment of an award by the Department shall 
submit a copy of the final decision granting the award, accompanied by a 
certification that the applicant will not seek review of the decision in 
the United States courts to the General Counsel, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Room 5870, 
Washington, D.C. 20230. The Department will pay the amount awarded to 
the applicant within 60 calendar days, unless judicial review of the 
award or of the underlying decision of the adversary adjudication has 
been sought by the applicant or any other party to the proceeding.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988]



PART 19_COMMERCE DEBT COLLECTION--Table of Contents



                      Subpart A_General Provisions

Sec.
19.1  What definitions apply to the regulations in this part?

[[Page 161]]

19.2  Why did the Commerce Department issue these regulations and what 
          do they cover?
19.3  Do these regulations adopt the Federal Claims Collection Standards 
          (FCCS)?

             Subpart B_Procedures to Collect Commerce Debts

19.4  What notice will Commerce entities send to a debtor when 
          collecting a Commerce debt?
19.5  How will Commerce entities add interest, penalty charges, and 
          administrative costs to a Commerce debt?
19.6  When will Commerce entities allow a debtor to pay a Commerce debt 
          in installments instead of one lump sum?
19.7  When will Commerce entities compromise a Commerce debt?
19.8  When will Commerce entities suspend or terminate debt collection 
          on a Commerce debt?
19.9  When will Commerce entities transfer a Commerce debt to the 
          Treasury Department's Bureau of the Fiscal Service for 
          collection?
19.10  How will Commerce entities use administrative offset (offset of 
          non-tax Federal payments) to collect a Commerce debt?
19.11  How will Commerce entities use tax refund offset to collect a 
          Commerce debt?
19.12  How will Commerce entities offset a Federal employee's salary to 
          collect a Commerce debt?
19.13  How will Commerce entities use administrative wage garnishment to 
          collect a Commerce debt from a debtor's wages?
19.14  How will Commerce entities report Commerce debts to credit 
          bureaus?
19.15  How will Commerce entities refer Commerce debts to private 
          collection agencies?
19.16  When will Commerce entities refer Commerce debts to the 
          Department of Justice?
19.17  Will a debtor who owes a Commerce or other Federal agency debt, 
          and persons controlled by or controlling such debtors, be 
          ineligible for Federal loan assistance, grants, cooperative 
          agreements, or other sources of Federal funds or for Federal 
          licenses, permits, or privileges?
19.18  How does a debtor request a special review based on a change in 
          circumstances such as catastrophic illness, divorce, death, or 
          disability?
19.19  Will Commerce entities issue a refund if money is erroneously 
          collected on a Commerce debt?

   Subpart C_Procedures for Offset of Commerce Department Payments To 
              Collect Debts Owed to Other Federal Agencies

19.20  How do other Federal agencies use the offset process to collect 
          debts from payments issued by a Commerce entity?
19.21  What does a Commerce entity do upon receipt of a request to 
          offset the salary of a Commerce entity employee to collect a 
          debt owed by the employee to another Federal agency?

    Authority: 31 U.S.C. 3701, et seq.

    Source: 81 FR 12811, Mar. 11, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 19.1  What definitions apply to the regulations in this part?

    As used in this part:
    Administrative offset or offset means withholding funds payable by 
the United States (including funds payable by the United States on 
behalf of a state government) to, or held by the United States for, a 
person to satisfy a debt owed by the person. The term ``administrative 
offset'' can include, but is not limited to, the offset of Federal 
salary, vendor, retirement, and Social Security benefit payments. The 
terms ``centralized administrative offset'' and ``centralized offset'' 
refer to the process by which the Treasury Department's Bureau of the 
Fiscal Service offsets Federal payments through the Treasury Offset 
Program.
    Administrative wage garnishment means the process by which a Federal 
agency orders a non-Federal employer to withhold amounts from a debtor's 
wages to satisfy a debt, as authorized by 31 U.S.C. 3720D, 31 CFR 
285.11, and this part.
    Agency or Federal agency means a department, agency, court, court 
administrative office, or instrumentality in the executive, judicial, or 
legislative branch of the Federal Government, including government 
corporations.
    Bureau of the Fiscal Service means the Bureau of the Fiscal Service, 
a bureau of the Treasury Department, which is responsible for the 
centralized collection of delinquent debts through the

[[Page 162]]

offset of Federal payments and other means.
    Commerce debt means a debt owed to a Commerce entity by a person.
    Commerce Department means the United States Department of Commerce.
    Commerce entity means a component of the Commerce Department, 
including offices or bureaus. Commerce offices currently include the 
Office of the Secretary of Commerce, and the Office of Inspector 
General. Commerce bureaus currently include the Bureau of Industry and 
Security, the Economics and Statistics Administration (including the 
Bureau of Economic Analysis, and the Bureau of the Census), the Economic 
Development Administration, the International Trade Administration, the 
Minority Business Development Agency, the National Oceanic and 
Atmospheric Administration, the National Telecommunications and 
Information Administration, the U.S. Patent and Trademark Office, and 
the Technology Administration (including the National Institute of 
Standards and Technology, and the National Technical Information 
Service).
    Creditor agency means any Federal agency that is owed a debt.
    Day means calendar day except when express reference is made to 
business day, which reference shall mean Monday through Friday. For 
purposes of time computation, the last day of the period provided will 
be included in the calculation unless that day is a Saturday, a Sunday, 
or a Federal legal holiday; in which case, the next business day will be 
included.
    Debt means any amount of money, funds or property that has been 
determined by an appropriate official of the Federal Government to be 
owed to the United States by a person. As used in this part, the term 
``debt'' can include a Commerce debt but does not include debts arising 
under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).
    Debtor means a person who owes a debt to the United States.
    Delinquent debt means a debt that has not been paid by the date 
specified in the agency's initial written demand for payment or 
applicable agreement or instrument (including a post-delinquency payment 
agreement) unless other satisfactory payment arrangements have been 
made.
    Delinquent Commerce debt means a delinquent debt owed to a Commerce 
entity.
    Disposable pay has the same meaning as that term is defined in 5 CFR 
550.1103.
    Employee or Federal employee means a current employee of the 
Commerce Department or other Federal agency, including a current member 
of the uniformed services, including the Army, Navy, Air Force, Marine 
Corps, Coast Guard, Commissioned Corps of the National Oceanic and 
Atmospheric Administration, and Commissioned Corps of the Public Health 
Service, including the National Guard and the reserve forces of the 
uniformed services.
    FCCS means the Federal Claims Collection Standards, which were 
jointly published by the Departments of the Treasury and Justice and 
codified at 31 CFR parts 900-904.
    Payment agency or Federal payment agency means any Federal agency 
that transmits payment requests in the form of certified payment 
vouchers, or other similar forms, to a disbursing official for 
disbursement. The payment agency may be the agency that employs the 
debtor. In some cases, the Commerce Department may be both the creditor 
agency and payment agency.
    Person means an individual, corporation, partnership, association, 
organization, State or local government or any other type of entity 
other than a Federal agency.
    Salary offset means a type of administrative offset to collect a 
debt under 5 CFR part 5514 by deductions(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.
    Secretary means the Secretary of Commerce.
    Tax refund offset is defined in 31 CFR 285.2(a).



Sec. 19.2  Why did the Commerce Department issue these regulations
and what do they cover?

    (a) Scope. This part provides procedures for the collection of 
Commerce

[[Page 163]]

Department debts. This part also provides procedures for collection of 
other debts owed to the United States when a request for offset of a 
payment for which Commerce Department is the payment agency is received 
by Commerce Department from another agency (for example, when a Commerce 
Department employee owes a debt to the United States Department of 
Education).
    (b) Applicability. (1) This part applies to Commerce Department when 
collecting a Commerce Department debt, to persons who owe Commerce 
Department debts, to persons controlled by or controlling persons who 
owe Federal agency debts, and to Federal agencies requesting offset of a 
payment issued by Commerce Department as a payment agency (including 
salary payments to Commerce Department employees).
    (2) This part does not apply to tax debts nor to any debt for which 
there is an indication of fraud or misrepresentation, as described in 
section 900.3 of the FCCS, unless the debt is returned by the Department 
of Justice to Commerce Department for handling.
    (3) Nothing in this part precludes collection or disposition of any 
debt under statutes and regulations other than those described in this 
part. See, for example, 5 U.S.C. 5705, Advancements and Deductions, 
which authorizes Commerce entities to recover travel advances by offset 
of up to 100 percent of a Federal employee's accrued pay. See, also, 5 
U.S.C. 4108, governing the collection of training expenses. To the 
extent that the provisions of laws, other regulations, and Commerce 
Department enforcement policies differ from the provisions of this part, 
those provisions of law, other regulations, and Commerce Department 
enforcement policies apply to the remission or mitigation of fines, 
penalties, and forfeitures, and to debts arising under the tariff laws 
of the United States, rather than the provisions of this part.
    (c) Additional policies and procedures. Commerce entities may, but 
are not required to, promulgate additional policies and procedures 
consistent with this part, the FCCS, and other applicable Federal law, 
policies, and procedures, subject to the approval of Deputy Chief 
Financial Officer.
    (d) Duplication not required. Nothing in this part requires a 
Commerce entity to duplicate notices or administrative proceedings 
required by contract, this part, or other laws or regulations, including 
but not limited to those required by financial assistance awards such as 
grants, cooperative agreements, loans or loan guarantees.
    (e) Use of multiple collection remedies allowed. Commerce entities 
and other Federal agencies may simultaneously use multiple collection 
remedies to collect a debt, except as prohibited by law. This part is 
intended to promote aggressive debt collection, using for each debt all 
available and appropriate collection remedies. These remedies are not 
listed in any prescribed order to provide Commerce entities with 
flexibility in determining which remedies will be most efficient in 
collecting the particular debt.



Sec. 19.3  Do these regulations adopt the Federal Claims Collection
Standards (FCCS)?

    This part adopts and incorporates all provisions of the FCCS (31 CFR 
Chapter IX parts 900-904). This part also supplements the FCCS by 
prescribing procedures consistent with the FCCS, as necessary and 
appropriate for Commerce Department operations.



             Subpart B_Procedures To Collect Commerce Debts



Sec. 19.4  What notice will Commerce entities send to a debtor when
collecting a Commerce debt?

    (a) Notice requirements. Commerce entities shall aggressively 
collect Commerce debts. Commerce entities shall promptly send at least 
one written notice to a debtor informing the debtor of the consequences 
of failing to pay or otherwise resolve a Commerce debt. The notice(s) 
shall be sent to the debtor at the most current address of the debtor in 
the records of the Commerce entity collecting the Commerce debt. 
Generally, before starting the collection actions described in 
Secs. 19.5 and 19.9 through 19.17 of this part, Commerce entities will 
send no more than two

[[Page 164]]

written notices to the debtor. The notice(s) explain why the Commerce 
debt is owed, the amount of the Commerce debt, how a debtor may pay the 
Commerce debt or make alternate repayment arrangements, how a debtor may 
review non-privileged documents related to the Commerce debt, how a 
debtor may dispute the Commerce debt, the collection remedies available 
to Commerce entities if the debtor refuses or otherwise fails to pay the 
Commerce debt, and other consequences to the debtor if the Commerce debt 
is not paid. Except as otherwise provided in paragraph (b) of this 
section, the written notice(s) shall explain to the debtor:
    (1) The nature and amount of the Commerce debt, and the facts giving 
rise to the Commerce debt;
    (2) How interest, penalties, and administrative costs are added to 
the Commerce debt, the date by which payment should be made to avoid 
such charges, and that such assessments must be made unless excused in 
accordance with 31 CFR 901.9 (see Sec. 19.5 of this part);
    (3) The date by which payment should be made to avoid the enforced 
collection actions described in paragraph (a)(6) of this section;
    (4) The Commerce entity's willingness to discuss alternative payment 
arrangements and how the debtor may enter into a written agreement to 
repay the Commerce debt under terms acceptable to the Commerce entity 
(see Sec. 19.6 of this part);
    (5) The name, address, and telephone number of a contact person or 
office within the Commerce entity;
    (6) The Commerce entity's intention to enforce collection by taking 
one or more of the following actions if the debtor fails to pay or 
otherwise resolve the Commerce debt:
    (i) Offset. Offset the debtor's Federal payments, including income 
tax refunds, salary, certain benefit payments (such as Social Security), 
retirement, vendor, travel reimbursements and advances, and other 
Federal payments (see Secs. 19.10 through 19.12 of this part);
    (ii) Private collection agency. Refer the Commerce debt to a private 
collection agency (see Sec. 19.15 of this part);
    (iii) Credit bureau reporting. Report the Commerce debt to a credit 
bureau (see Sec. 19.14 of this part);
    (iv) Administrative wage garnishment. Garnish the individual 
debtor's wages through administrative wage garnishment (see Sec. 19.13 
of this part);
    (v) Litigation. Refer the Commerce debt to the Department of Justice 
to initiate litigation to collect the Commerce debt (see Sec. 19.16 of 
this part);
    (vi) Treasury Department's Bureau of the Fiscal Service. Refer the 
Commerce debt to the Bureau of the Fiscal Service for collection (see 
Sec. 19.9 of this part);
    (7) That Commerce debts over 120 days delinquent must be referred to 
the Bureau of the Fiscal Service for the collection actions described in 
paragraph (a)(6) of this section (see Sec. 19.9 of this part);
    (8) How the debtor may inspect and copy non-privileged records 
related to the Commerce debt;
    (9) How the debtor may request a review of the Commerce entity's 
determination that the debtor owes a Commerce debt and present evidence 
that the Commerce debt is not delinquent or legally enforceable (see 
Secs. 19.10(c) and 19.11(c) of this part);
    (10) How a debtor who is an individual may request a hearing if the 
Commerce entity intends to garnish the debtor's private sector (i.e., 
non-Federal) wages (see Sec. 1 9.13(a) of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That a request for a hearing, timely filed on or before the 
15th business day following the date of the mailing of the notice, will 
stay the commencement of administrative wage garnishment, but not other 
collection procedures; and
    (iii) The name and address of the office to which the request for a 
hearing should be sent.
    (11) How a debtor who is an individual and a Federal employee 
subject to Federal salary offset may request a hearing (see 
Sec. 19.12(e) of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That a request for a hearing, timely filed on or before the 
15th day following receipt of the notice, will

[[Page 165]]

stay the commencement of salary offset, but not other collection 
procedures;
    (iii) The name and address of the office to which the request for a 
hearing should be sent;
    (iv) That the Commerce entity will refer the Commerce debt to the 
debtor's employing agency or to the Bureau of the Fiscal Service to 
implement salary offset, unless the employee files a timely request for 
a hearing;
    (v) That a final decision on the hearing, if requested, will be 
issued at the earliest practical date, but not later than 60 days after 
the filing of the request for a hearing, unless the employee requests 
and the hearing official grants a delay in the proceedings;
    (vi) That any knowingly false or frivolous statements, 
representations, or evidence may subject the Federal employee to 
penalties under the False Claims Act (31 U.S.C. 3729-3731) or other 
applicable statutory authority, and criminal penalties under 18 U.S.C. 
286, 287, 1001, and 1002, or other applicable statutory authority;
    (vii) That unless prohibited by contract or statute, amounts paid on 
or deducted for the Commerce debt which are later waived or found not 
owed to the United States will be promptly refunded to the employee; and
    (viii) That proceedings with respect to such Commerce debt are 
governed by 5 U.S.C. 5514 and 31 U.S.C. 3716.
    (12) How the debtor may request a waiver of the Commerce debt, if 
applicable. See, for example, Secs. 19.5 and 19.12(f) of this part.
    (13) How the debtor's spouse may claim his or her share of a joint 
income tax refund by filing Form 8379 with the Internal Revenue Service 
(see http://www.irs.gov);
    (14) How the debtor may exercise other rights and remedies, if any, 
available to the debtor under programmatic statutory or regulatory 
authority under which the Commerce debt arose.
    (15) That certain debtors and, if applicable, persons controlled by 
or controlling such debtors, may be ineligible for Federal Government 
loans, guaranties and insurance, grants, cooperative agreements or other 
sources of Federal funds (see 28 U.S.C. 3201(e); 31 U.S.C. 3720B, 31 CFR 
285.13, and Sec. 19.17(a) of this part);
    (16) If applicable, the Commerce entity's intention to deny, suspend 
or revoke licenses, permits or privileges (see Sec. 19.17(b) of this 
part); and
    (17) That the debtor should advise the Commerce entity of a 
bankruptcy proceeding of the debtor or another person liable for the 
Commerce debt being collected.
    (b) Exceptions to notice requirements. A Commerce entity may omit 
from a notice to a debtor one or more of the provisions contained in 
paragraphs (a)(6) through (17) of this section if the Commerce entity, 
in consultation with its legal counsel, determines that any provision is 
not legally required given the collection remedies to be applied to a 
particular Commerce debt.
    (c) Respond to debtors; comply with FCCS. Commerce entities should 
respond promptly to communications from debtors and comply with other 
FCCS provisions applicable to the administrative collection of debts. 
See 31 CFR part 901.



Sec. 19.5  How will Commerce entities add interest, penalty charges,
and administrative costs to a Commerce debt?

    (a) Assessment and notice. Commerce entities shall assess interest, 
penalties and administrative costs on Commerce debts in accordance with 
the provisions of 31 U.S.C. 3717 and 31 CFR 901.9. Interest shall be 
charged in accordance with the requirements of 31 U.S.C. 3717(a). 
Penalties shall accrue at a rate of not more than 6% per year or such 
other higher rate as authorized by law. Administrative costs, that is, 
the costs of processing and handling a delinquent debt, shall be 
determined by the Commerce entity collecting the debt, as directed by 
the Office of the Deputy Chief Financial Officer. Commerce entities may 
have additional policies regarding how interest, penalties, and 
administrative costs are assessed on particular types of debts, subject 
to the approval of the Deputy Chief Financial Officer. Commerce entities 
are required to explain in the notice to the debtor described in 
Sec. 19.4 of this part how interest, penalties, costs, and other

[[Page 166]]

charges are assessed, unless the requirements are included in a contract 
or other legally binding agreement.
    (b) Waiver of interest, penalties, and administrative costs. Unless 
otherwise required by law or contract, Commerce entities may not charge 
interest if the amount due on the Commerce debt is paid within 30 days 
after the date from which the interest accrues. See 31 U.S.C. 3717(d). 
Commerce entities may, with legal counsel approval, waive interest, 
penalties, and administrative costs, or any portion thereof, when it 
would be against equity and good conscience or not in the United States' 
best interest to collect such charges, in accordance with Commerce 
guidelines for such waivers. (See Commerce Department Credit and Debt 
Management Operating Standards and Procedures Handbook, available at 
http://www.osec.doc.gov/ofm/credit/cover.html.)
    (c) Accrual during suspension of debt collection. In most cases, 
interest, penalties and administrative costs will continue to accrue 
during any period when collection has been suspended for any reason (for 
example, when the debtor has requested a hearing). Commerce entities may 
suspend accrual of any or all of these charges when accrual would be 
against equity and good conscience or not in the United States' best 
interest, in accordance with Commerce guidelines for such waivers. (See 
Commerce Department Credit and Debt Management Operating Standards and 
Procedures Handbook, available at http://www.osec.doc.gov/ofm/
credit.cover.html.)



Sec. 19.6  When will Commerce entities allow a debtor to pay a 
Commerce debt in installments instead of one lump sum?

    If a debtor is financially unable to pay the Commerce debt in one 
lump sum, a Commerce entity may accept payment of a Commerce debt in 
regular installments, in accordance with the provisions of 31 CFR 901.8 
and the Commerce entity's policies and procedures.



Sec. 19.7  When will Commerce entities compromise a Commerce debt?

    If a Commerce entity cannot collect the full amount of a Commerce 
debt, the Commerce entity may, with legal counsel approval, compromise 
the Commerce debt in accordance with the provisions of 31 CFR part 902 
and the Commerce entity's policies and procedures. (See Commerce 
Department Credit and Debt Management Operating Standards and Procedures 
Handbook, available at http://www.osec.doc.gov/ofm/credit.cover.html.)



Sec. 19.8  When will Commerce entities suspend or terminate debt
collection on a Commerce debt?

    If, after pursuing all appropriate means of collection, a Commerce 
entity determines that a Commerce debt is uncollectible, the Commerce 
entity may, with legal counsel approval, suspend or terminate debt 
collection activity in accordance with the provisions of 31 CFR part 903 
and the Commerce entity's policies and procedures. Termination of debt 
collection activity by a Commerce entity does not discharge the 
indebtedness. (See Commerce Department Credit and Debt Management 
Operating Standards and Procedures Handbook, available at http://
www.osec.doc.gov/ofm/credit/cover.html.)



Sec. 19.9  When will Commerce entities transfer a Commerce debt to 
the Treasury Department's Bureau of the Fiscal Service for collection?

    (a) Commerce entities will transfer any Commerce debt that is more 
than 120 days delinquent to the Bureau of the Fiscal Service for debt 
collection services, a process known as ``cross-servicing.'' See 31 
U.S.C. 3711(g), 31 CFR 285.12, and 31 U.S.C. 3716(c)(6). Commerce 
entities may transfer Commerce debts delinquent 120 days or less to the 
Bureau of the Fiscal Service in accordance with the procedures described 
in 31 CFR 285.12. The Bureau of the Fiscal Service takes appropriate 
action to collect or compromise the transferred Commerce debt, or to 
suspend or terminate collection action thereon, in accordance with the 
statutory and regulatory requirements and authorities applicable to the 
Commerce debt and the collection action to be taken. See 31 CFR 
285.12(b) and 285.12(c)(2). Appropriate action can include, but is not 
limited to, contact with the debtor, referral of the Commerce debt to 
the

[[Page 167]]

Treasury Offset Program, private collection agencies or the Department 
of Justice, reporting of the Commerce debt to credit bureaus, and 
administrative wage garnishment.
    (b) At least sixty (60) days prior to transferring a Commerce debt 
to the Bureau of the Fiscal Service, Commerce entities will send notice 
to the debtor as required by Sec. 19.4 of this part. Commerce entities 
will certify to the Bureau of the Fiscal Service, in writing, that the 
Commerce debt is valid, delinquent, legally enforceable, and that there 
are no legal bars to collection. In addition, Commerce entities will 
certify their compliance with all applicable due process and other 
requirements as described in this part and other Federal laws. See 31 
CFR 285.12(i) regarding the certification requirement.
    (c) As part of its debt collection process, the Bureau of the Fiscal 
Service uses the Treasury Offset Program to collect Commerce debts by 
administrative and tax refund offset. See 31 CFR 285.12(g). The Treasury 
Offset Program is a centralized offset program administered by the 
Bureau of the Fiscal Service to collect delinquent debts owed to Federal 
agencies and states (including past-due child support). Under the 
Treasury Offset Program, before a Federal payment is disbursed, the 
Bureau of the Fiscal Service compares the name and taxpayer 
identification number (TIN) of the payee with the names and TINs of 
debtors that have been submitted by Federal agencies and states to the 
Treasury Offset Program database. If there is a match, the Bureau of the 
Fiscal Service (or, in some cases, another Federal disbursing agency) 
offsets all or a portion of the Federal payment, disburses any remaining 
payment to the payee, and pays the offset amount to the creditor agency. 
Federal payments eligible for offset include, but are not limited to, 
income tax refunds, salary, travel advances and reimbursements, 
retirement and vendor payments, and Social Security and other benefit 
payments.



Sec. 19.10  How will Commerce entities use administrative offset
(offset of non-tax Federal payments) to collect a Commerce debt?

    (a) Centralized administrative offset through the Treasury Offset 
Program. (1) In most cases, the Bureau of the Fiscal Service uses the 
Treasury Offset Program to collect Commerce debts by the offset of 
Federal payments. See Sec. 19.9(c) of this part. If not already 
transferred to the Bureau of the Fiscal Service under Sec. 19.9 of this 
part, Commerce entities will refer Commerce debt over 120 days 
delinquent to the Treasury Offset Program for collection by centralized 
administrative offset. See 31 U.S.C. 3716(c)(6); 31 CFR part 285, 
subpart A; and 31 CFR 901.3(b). Commerce entities may refer to the 
Treasury Offset Program for offset any Commerce debt that has been 
delinquent for 120 days or less.
    (2) At least sixty (60) days prior to referring a Commerce debt to 
the Treasury Offset Program, in accordance with paragraph (a)(1) of this 
section, Commerce entities will send notice to the debtor in accordance 
with the requirements of Sec. 19.4 of this part. Commerce entities will 
certify to the Bureau of the Fiscal Service, in writing, that the 
Commerce debt is valid, delinquent, legally enforceable, and that there 
are no legal bars to collection by offset. In addition, Commerce 
entities will certify their compliance with the requirements described 
in this part.
    (b) Non-centralized administrative offset for Commerce debts. (1) 
When centralized administrative offset through the Treasury Offset 
Program is not available or appropriate, Commerce entities may collect 
past-due, legally enforceable Commerce debts through non-centralized 
administrative offset. See 31 CFR 901.3(c). In these cases, Commerce 
entities may offset a payment internally or make an offset request 
directly to a Federal payment agency. If the Federal payment agency is 
another Commerce entity, the Commerce entity making the request shall do 
so through the Deputy Chief Financial Officer as described in 
Sec. 19.20(c) of this part.
    (2) At least thirty (30) days prior to offsetting a payment 
internally or requesting a Federal payment agency to

[[Page 168]]

offset a payment, Commerce entities will send notice to the debtor in 
accordance with the requirements of Sec. 19.4 of this part. When 
referring a Commerce debt for offset under this paragraph (b), Commerce 
entities making the request will certify, in writing, that the Commerce 
debt is valid, delinquent, legally enforceable, and that there are no 
legal bars to collection by offset. In addition, Commerce entities will 
certify their compliance with these regulations concerning 
administrative offset. See 31 CFR 901.3(c)(2)(ii).
    (c) Administrative review. The notice described in Sec. 19.4 of this 
part shall explain to the debtor how to request an administrative review 
of a Commerce entity's determination that the debtor owes a Commerce 
debt and how to present evidence that the Commerce debt is not 
delinquent or legally enforceable. In addition to challenging the 
existence and amount of the Commerce debt, the debtor may seek a review 
of the terms of repayment. In most cases, Commerce entities will provide 
the debtor with a ``paper hearing'' based upon a review of the written 
record, including documentation provided by the debtor. Commerce 
entities shall provide the debtor with a reasonable opportunity for an 
oral hearing when the debtor requests reconsideration of the Commerce 
debt and the Commerce entity determines that the question of the 
indebtedness cannot be resolved by review of the documentary evidence, 
for example, when the validity of the Commerce debt turns on an issue of 
credibility or veracity. Unless otherwise required by law, an oral 
hearing under this section is not required to be a formal evidentiary 
hearing, although Commerce entities should carefully document all 
significant matters discussed at the hearing. Commerce entities may 
suspend collection through administrative offset and/or other collection 
actions pending the resolution of a debtor's dispute.
    (d) Procedures for expedited offset. Under the circumstances 
described in 31 CFR 901.3(b)(4)(iii), Commerce entities may, with legal 
counsel approval, effect an offset against a payment to be made to the 
debtor prior to sending a notice to the debtor, as described in 
Sec. 19.4 of this part, or completing the procedures described in 
paragraph (b)(2) and (c) of this section. Commerce entities shall give 
the debtor notice and an opportunity for review as soon as practicable 
and promptly refund any money ultimately found not to have been owed to 
the Government. (See Commerce Department Credit and Debt Management 
Operating Standards and Procedures Handbook, available at http://
www.osec.doc.gov/ofm/credit.cover.html.)



Sec. 19.11  How will Commerce entities use tax refund offset to 
collect a Commerce debt?

    (a) Tax refund offset. In most cases, the Bureau of the Fiscal 
Service uses the Treasury Offset Program to collect Commerce debts by 
the offset of tax refunds and other Federal payments. See Sec. 19.9(c) 
of this part. If not already transferred to the Bureau of the Fiscal 
Service under Sec. 19.9 of this part, Commerce entities will refer to 
the Treasury Offset Program any past-due, legally enforceable Commerce 
debt for collection by tax refund offset. See 26 U.S.C. 6402(d), 31 
U.S.C. 3720A and 31 CFR 285.2.
    (b) Notice. At least sixty (60) days prior to referring a Commerce 
debt to the Treasury Offset Program, Commerce entities will send notice 
to the debtor in accordance with the requirements of Sec. 19.4 of this 
part. Commerce entities will certify to the Bureau of the Fiscal 
Service's Treasury Offset Program, in writing, that the Commerce debt is 
past due and legally enforceable in the amount submitted and that the 
Commerce entities have made reasonable efforts to obtain payment of the 
Commerce debt as described in 31 CFR 285.2(d). In addition, Commerce 
entities will certify their compliance with all applicable due process 
and other requirements described in this part and other Federal laws. 
See 31 U.S.C. 3720A(b) and 31 CFR 285.2.
    (c) Administrative review. The notice described in Sec. 19.4 of this 
part shall provide the debtor with at least 60 days prior to the 
initiation of tax refund offset to request an administrative review as 
described in Sec. 19.10(c) of this part. Commerce entities may suspend 
collection through tax refund offset and/or

[[Page 169]]

other collection actions pending the resolution of the debtor's dispute.



Sec. 19.12  How will Commerce entities offset a Federal employee's
salary to collect a Commerce debt?

    (a) Federal salary offset. (1) Salary offset is used to collect 
debts owed to the United States by Commerce Department and other Federal 
employees. If a Federal employee owes a Commerce debt, Commerce entities 
may offset the employee's Federal salary to collect the Commerce debt in 
the manner described in this section. For information on how a Federal 
agency other than a Commerce entity may collect debt from the salary of 
a Commerce Department employee, see Secs. 19.20 and 19.21, subpart C, of 
this part.
    (2) Nothing in this part requires a Commerce entity to collect a 
Commerce debt in accordance with the provisions of this section if 
Federal law allows otherwise. See, for example, 5 U.S.C. 5705 (travel 
advances not used for allowable travel expenses are recoverable from the 
employee or his estate by setoff against accrued pay and other means) 
and 5 U.S.C. 4108 (recovery of training expenses).
    (3) Commerce entities may use the administrative wage garnishment 
procedure described in Sec. 19.13 of this part to collect a Commerce 
debt from an individual's non-Federal wages.
    (b) Centralized salary offset through the Treasury Offset Program. 
As described in Sec. 19.9(a) of this part, Commerce entities will refer 
Commerce debts to the Bureau of the Fiscal Service for collection by 
administrative offset, including salary offset, through the Treasury 
Offset Program. When possible, Commerce entities should attempt salary 
offset through the Treasury Offset Program before applying the 
procedures in paragraph (c) of this section. See 5 CFR 550.1108 and 
550.1109.
    (c) Non-centralized salary offset for Commerce debts. When 
centralized salary offset through the Treasury Offset Program is not 
available or appropriate, Commerce entities may collect delinquent 
Commerce debts through non-centralized salary offset. See 5 CFR 
550.1109. In these cases, Commerce entities may offset a payment 
internally or make a request directly to a Federal payment agency to 
offset a salary payment to collect a delinquent Commerce debt owed by a 
Federal employee. If the Federal payment agency is another Commerce 
entity, the Commerce entity making the request shall do so through the 
Deputy Chief Financial Officer as described in Sec. 19.20(c) of this 
part. At least thirty (30) days prior to offsetting internally or 
requesting a Federal agency to offset a salary payment, Commerce 
entities will send notice to the debtor in accordance with the 
requirements of Sec. 19.4 of this part. When referring a Commerce debt 
for offset, Commerce entities will certify to the payment agency, in 
writing, that the Commerce debt is valid, delinquent and legally 
enforceable in the amount stated, and there are no legal bars to 
collection by salary offset. In addition, Commerce entities will certify 
that all due process and other prerequisites to salary offset have been 
met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and this section for a 
description of the due process and other prerequisites for salary 
offset.
    (d) When prior notice not required. Commerce entities are not 
required to provide prior notice to an employee when the following 
adjustments are made by a Commerce entity to a Commerce employee's pay:
    (1) Any adjustment to pay arising out of any employee's election of 
coverage or a change in coverage under a Federal benefits program 
requiring periodic deductions from pay, if the amount to be recovered 
was accumulated over four pay periods or less;
    (2) A routine intra-agency adjustment of pay that is made to correct 
an overpayment of pay attributable to clerical or administrative errors 
or delays in processing pay documents, if the overpayment occurred 
within the four pay periods preceding the adjustment, and, at the time 
of such adjustment, or as soon thereafter as practical, the individual 
is provided written notice of the nature and the amount of the 
adjustment and point of contact for contesting such adjustment; or
    (3) Any adjustment to collect a Commerce debt amounting to $50 or 
less, if, at the time of such adjustment, or as soon thereafter as 
practical, the individual is provided written notice of the

[[Page 170]]

nature and the amount of the adjustment and a point of contact for 
contesting such adjustment.
    (e) Hearing procedures--(1) Request for a hearing. A Federal 
employee who has received a notice that his or her Commerce debt will be 
collected by means of salary offset may request a hearing concerning the 
existence or amount of the Commerce debt. The Federal employee also may 
request a hearing concerning the amount proposed to be deducted from the 
employee's pay each pay period. The employee must send any request for 
hearing, in writing, to the office designated in the notice described in 
Sec. 19.4. See Sec. 19.4(a)(11). The request must be received by the 
designated office on or before the 15th day following the employee's 
receipt of the notice. The employee must sign the request and specify 
whether an oral or paper hearing is requested. If an oral hearing is 
requested, the employee must explain why the matter cannot be resolved 
by review of the documentary evidence alone. All travel expenses 
incurred by the Federal employee in connection with an in-person hearing 
will be borne by the employee. See 31 CFR 901.3(a)(7).
    (2) Failure to submit timely request for hearing. If the employee 
fails to submit a request for hearing within the time period described 
in paragraph (e)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, 
Commerce entities should accept a late request for hearing if the 
employee can show that the late request was the result of circumstances 
beyond the employee's control or because of a failure to receive actual 
notice of the filing deadline.
    (3) Hearing official. Commerce entities must obtain the services of 
a hearing official who is not under the supervision or control of the 
Secretary. Commerce entities may contact the Deputy Chief Financial 
Officer as described in Sec. 19.20(c) of this part or an agent of any 
Commerce agency designated in Appendix A to 5 CFR part 581 (List of 
Agents Designated to Accept Legal Process) to request a hearing 
official.
    (4) Notice of hearing. After the employee requests a hearing, the 
designated hearing official shall inform the employee of the form of the 
hearing to be provided. For oral hearings, the notice shall set forth 
the date, time and location of the hearing. For paper hearings, the 
notice shall notify the employee of the date by which he or she should 
submit written arguments to the designated hearing official. The hearing 
official shall give the employee reasonable time to submit documentation 
in support of the employee's position. The hearing official shall 
schedule a new hearing date if requested by both parties. The hearing 
official shall give both parties reasonable notice of the time and place 
of a rescheduled hearing.
    (5) Oral hearing. The hearing official will conduct an oral hearing 
if he or she determines that the matter cannot be resolved by review of 
documentary evidence alone (for example, when an issue of credibility or 
veracity is involved). The hearing need not take the form of an 
evidentiary hearing, but may be conducted in a manner determined by the 
hearing official, including but not limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses and argument;
    (ii) Informal meetings with an interview of the employee by the 
hearing official; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (6) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, he or she will make the determination based 
upon a review of the available written record, including any 
documentation submitted by the employee in support of his or her 
position. See 31 CFR 901.3(a)(7).
    (7) Failure to appear or submit documentary evidence. In the absence 
of good cause shown (for example, excused illness), if the employee 
fails to appear at an oral hearing or fails to submit documentary 
evidence as required for a paper hearing, the employee will have waived 
the right to a hearing, and salary offset may be initiated. Further, the 
employee will have been deemed to admit the existence and amount of the

[[Page 171]]

Commerce debt as described in the notice of intent to offset. If the 
Commerce entity representative fails to appear at an oral hearing, the 
hearing official shall proceed with the hearing as scheduled, and make 
his or her determination based upon the oral testimony presented and the 
documentary evidence submitted by both parties.
    (8) Burden of proof. Commerce entities will have the initial burden 
to prove the existence and amount of the Commerce debt. Thereafter, if 
the employee disputes the existence or amount of the Commerce debt, the 
employee must prove by a preponderance of the evidence that no such 
Commerce debt exists or that the amount of the Commerce debt is 
incorrect. In addition, the employee may present evidence that the 
proposed terms of the repayment schedule are unlawful, would cause a 
financial hardship to the employee, or that collection of the Commerce 
debt may not be pursued due to operation of law.
    (9) Record. The hearing official shall maintain a summary record of 
any hearing provided by this part. Witnesses will testify under oath or 
affirmation in oral hearings. See 31 CFR 901.3(a)(7).
    (10) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 days after the date on which the request 
for hearing was received by the Commerce entity. If the employee 
requests a delay in the proceedings, the deadline for the decision may 
be postponed by the number of days by which the hearing was postponed. 
When a decision is not timely rendered, the Commerce entity shall waive 
interest and penalties applied to the Commerce debt for the period 
beginning with the date the decision is due and ending on the date the 
decision is issued.
    (11) Content of decision. The written decision shall include:
    (i) A statement of the facts presented to support the origin, 
nature, and amount of the Commerce debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (12) Final agency action. The hearing official's decision shall be 
final.
    (f) Waiver not precluded. Nothing in this part precludes an employee 
from requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 
10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority. Commerce 
entities may grant such waivers when it would be against equity and good 
conscience or not in the United States' best interest to collect such 
Commerce debts, in accordance with those authorities, 5 CFR 
550.1102(b)(2), and Commerce policies and procedures. (See Commerce 
Department Credit and Debt Management Operating Standards and Procedures 
Handbook, available at http://www.osec.doc.gov/ofm/credit/cover.html.)
    (g) Salary offset process--(1) Determination of disposable pay. The 
Deputy Chief Financial Officer will consult with the appropriate 
Commerce entity payroll office to determine the amount of a Commerce 
Department employee's disposable pay (as defined in Sec. 19.1 of this 
part) and will implement salary offset when requested to do so by a 
Commerce entity, as described in paragraph (c) of this section, or 
another agency, as described in Sec. 19.20 of this part. If the debtor 
is not employed by Commerce Department, the agency employing the debtor 
will determine the amount of the employee's disposable pay and will 
implement salary offset upon request.
    (2) When salary offset begins. Deductions shall begin within three 
official pay periods following receipt of the creditor agency's request 
for offset.
    (3) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15 percent of a debtor's disposable pay, as 
follows:
    (i) If the amount of the Commerce debt is equal to or less than 15 
percent of the disposable pay, such Commerce debt generally will be 
collected in one lump sum payment;
    (ii) Installment deductions will be made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
not exceed 15 percent of the disposable pay from which the deduction is 
made unless the employee has agreed in writing to the deduction of a 
greater amount

[[Page 172]]

or the creditor agency has determined that smaller deductions are 
appropriate based on the employee's ability to pay.
    (4) Final salary payment. After the employee has separated either 
voluntarily or involuntarily from the payment agency, the payment agency 
may make a lump sum deduction exceeding 15 percent of disposable pay 
from any final salary or other payments pursuant to 31 U.S.C. 3716 in 
order to satisfy a Commerce debt.
    (h) Payment agency's responsibilities. (1) As required by 5 CFR 
550.1109, if the employee separates from the payment agency from which a 
Commerce entity has requested salary offset, the payment agency must 
certify the total amount of its collection and notify the Commerce 
entity and the employee of the amounts collected. If the payment agency 
is aware that the employee is entitled to payments from the Civil 
Service Retirement Fund and Disability Fund, the Federal Employee 
Retirement System, or other similar payments, it must provide written 
notification to the payment agency responsible for making such payments 
that the debtor owes a Commerce debt, the amount of the Commerce debt, 
and that the Commerce entity has complied with the provisions of this 
section. Commerce entities must submit a properly certified claim to the 
new payment agency before the collection can be made.
    (2) If the employee is already separated from employment and all 
payments due from his or her former payment agency have been made, 
Commerce entities may request that money due and payable to the employee 
from the Civil Service Retirement Fund and Disability Fund, the Federal 
Employee Retirement System, or other similar funds, be administratively 
offset to collect the Commerce debt. Generally, Commerce entities will 
collect such monies through the Treasury Offset Program as described in 
Sec. 19.9(c) of this part.
    (3) When an employee transfers to another agency, Commerce entities 
should resume collection with the employee's new payment agency in order 
to continue salary offset.



Sec. 19.13  How will Commerce entities use administrative wage
garnishment to collect a Commerce debt from a debtor's wages?

    (a) Commerce entities are authorized to collect Commerce debts from 
an individual debtor's wages by means of administrative wage garnishment 
in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 
285.11. This part adopts and incorporates all of the provisions of 31 
CFR 285.11 concerning administrative wage garnishment, including the 
hearing procedures described in 31 CFR 285.11(f). Commerce entities may 
use administrative wage garnishment to collect a delinquent Commerce 
debt unless the debtor is making timely payments under an agreement to 
pay the Commerce debt in installments (see Sec. 19.6 of this part). At 
least thirty (30) days prior to initiating an administrative wage 
garnishment, Commerce entities will send notice to the debtor in 
accordance with the requirements of Sec. 19.4 of this part, including 
the requirements of Sec. 19.4(a)(10) of this part. For Commerce debts 
referred to the Bureau of the Fiscal Service under Sec. 19.9 of this 
part, Commerce entities may authorize the Bureau of the Fiscal Service 
to send a notice informing the debtor that administrative wage 
garnishment will be initiated and how the debtor may request a hearing 
as described in Sec. 19.4(a)(10) of this part. If a debtor makes a 
timely request for a hearing, administrative wage garnishment will not 
begin until a hearing is held and a decision is sent to the debtor. See 
31 CFR 285.11(f)(4). Even if a debtor's hearing request is not timely, 
Commerce entities may suspend collection by administrative wage 
garnishment in accordance with the provisions of 31 CFR 285.11(f)(5). 
All travel expenses incurred by the debtor in connection with an in-
person hearing will be borne by the debtor.
    (b) This section does not apply to Federal salary offset, the 
process by which Commerce entities collect Commerce debts from the 
salaries of Federal employees (see Sec. 19.12 of this part).

[[Page 173]]



Sec. 19.14  How will Commerce entities report Commerce debts to credit
bureaus?

    Commerce entities shall report delinquent Commerce debts to credit 
bureaus in accordance with the provisions of 31 U.S.C. 3711(e), 31 CFR 
901.4, and the Office of Management and Budget Circular A-129, 
``Policies for Federal Credit Programs and Non-tax Receivables.'' For 
additional information, see Bureau of the Fiscal Service's ``Guide to 
the Federal Credit Bureau Program,'' available at https://
www.fiscal.treasury.gov/fsreports/fsreference.htm. At least sixty (60) 
days prior to reporting a delinquent Commerce debt to a consumer 
reporting agency, Commerce entities will send notice to the debtor in 
accordance with the requirements of Sec. 19.4 of this part. Commerce 
entities may authorize the Bureau of the Fiscal Service to report to 
credit bureaus those delinquent Commerce debts that have been 
transferred to the Bureau of the Fiscal Service under Sec. 19.9 of this 
part.



Sec. 19.15  How will Commerce entities refer Commerce debts to private
collection agencies?

    Commerce entities will transfer delinquent Commerce debts to the 
Bureau of the Fiscal Service to obtain debt collection services provided 
by private collection agencies. See Sec. 19.9 of this part.



Sec. 19.16  When will Commerce entities refer Commerce debts to the 
Department of Justice?

    (a) Compromise or suspension or termination of collection activity. 
Commerce entities shall refer Commerce debts having a principal balance 
over $100,000, or such higher amount as authorized by the Attorney 
General, to the Department of Justice for approval of any compromise of 
a Commerce debt or suspension or termination of collection activity. See 
Secs. 19.7 and 19.8 of this part; 31 CFR 902.1; 31 CFR 903.1.
    (b) Litigation. Commerce entities shall promptly refer to the 
Department of Justice for litigation delinquent Commerce debts on which 
aggressive collection activity has been taken in accordance with this 
part and that should not be compromised, and on which collection 
activity should not be suspended or terminated. See 31 CFR part 904. 
Commerce entities may authorize the Bureau of the Fiscal Service to 
refer to the Department of Justice for litigation those delinquent 
Commerce debts that have been transferred to the Bureau of the Fiscal 
Service under Sec. 19.9 of this part.



Sec. 19.17  Will a debtor who owes a Commerce or other Federal agency
debt, and persons controlled by or controlling such debtors, be 
ineligible for Federal loan assistance, grants, cooperative agreements,
or other sources of Federal funds or for Federal licenses, permits, or 
          privileges?

    (a) Delinquent debtors are ineligible for and barred from obtaining 
Federal loans or loan insurance or guaranties. As required by 31 U.S.C. 
3720B and 31 CFR 901.6, Commerce entities will not extend financial 
assistance in the form of a loan, loan guarantee, or loan insurance to 
any person delinquent on a debt owed to a Federal agency. Commerce 
Department may issue standards under which Commerce Department may 
determine that persons controlled by or controlling such delinquent 
debtors are similarly ineligible in accordance with 31 CFR 285.13(c)(2). 
This prohibition does not apply to disaster loans. Commerce entities may 
extend credit after the delinquency has been resolved. See 31 CFR 
285.13. Waivers of ineligibility may be granted by the Secretary or 
designee on a person by person basis in accordance with 31 CFR 
285.13(g). However, such authority may not be delegated below the Deputy 
Chief Financial Officer.
    (b) A debtor who has a judgment lien against the debtor's property 
for a debt to the United States is not eligible to receive grants, loans 
or funds directly or indirectly from the United States until the 
judgment is paid in full or otherwise satisfied. This prohibition does 
not apply to funds to which the debtor is entitled as beneficiary. 
Commerce Department may promulgate regulations to allow for waivers of 
this ineligibility. See 28 U.S.C. 3201(e).
    (c) Suspension or revocation of eligibility for licenses, permits, 
or privileges. Unless prohibited by law, Commerce entities with the 
authority to do

[[Page 174]]

so under the circumstances should deny, suspend or revoke licenses, 
permits, or other privileges for any inexcusable or willful failure of a 
debtor to pay a debt. The Commerce entity responsible for distributing 
the licenses, permits, or other privileges will establish policies and 
procedures governing suspension and revocation for delinquent debtors. 
If applicable, Commerce entities will advise the debtor in the notice 
required by Sec. 19.4 of this part of the Commerce entities' ability to 
deny, suspend or revoke licenses, permits or privileges. See 
Sec. 19.4(a)(16) of this part.
    (d) To the extent that a person delinquent on a Commerce debt is not 
otherwise barred under Sec. 19.17(a) and Sec. 19.17 (c) of this part 
from becoming or remaining a recipient of a Commerce Department grant or 
cooperative agreement, it is Commerce Department policy that no award of 
Federal funds shall be made to a Commerce Department grant or 
cooperative agreement applicant who has an outstanding delinquent 
Commerce debt until:
    (1) The delinquent Commerce debt is paid in full,
    (2) A negotiated repayment schedule acceptable to Commerce 
Department is established and at least one payment is received, or
    (3) Other arrangements satisfactory to Commerce Department are made.



Sec. 19.18  How does a debtor request a special review based on a
change in circumstances such as catastrophic illness, divorce, 
death, or disability?

    (a) Material change in circumstances. A debtor who owes a Commerce 
debt may, at any time, request a special review by the applicable 
Commerce entity of the amount of any offset, administrative wage 
garnishment, or voluntary payment, based on materially changed 
circumstances beyond the control of the debtor such as, but not limited 
to, catastrophic illness, divorce, death, or disability.
    (b) Inability to pay. For purposes of this section, in determining 
whether an involuntary or voluntary payment would prevent the debtor 
from meeting essential subsistence expenses (e.g., costs incurred for 
food, housing, clothing, transportation, and medical care), the debtor 
shall submit a detailed statement and supporting documents for the 
debtor, his or her spouse, and dependents, indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing, and transportation;
    (6) Medical expenses;
    (7) Exceptional expenses, if any; and
    (8) Any additional materials and information that the Commerce 
entity may request relating to ability or inability to pay the amount(s) 
currently required.
    (c) Alternative payment arrangement. If the debtor requests a 
special review under this section, the debtor shall submit an 
alternative proposed payment schedule and a statement to the Commerce 
entity collecting the Commerce debt, with supporting documents, showing 
why the current offset, garnishment or repayment schedule imposes an 
extreme financial hardship on the debtor. The Commerce entity will 
evaluate the statement and documentation and determine whether the 
current offset, garnishment, or repayment schedule imposes extreme 
financial hardship on the debtor. The Commerce entity shall notify the 
debtor in writing of such determination, including, if appropriate, a 
revised offset, garnishment, or payment schedule. If the special review 
results in a revised offset, garnishment, or repayment schedule, the 
Commerce entity will notify the appropriate Federal agency or other 
persons about the new terms.



Sec. 19.19  Will Commerce entities issue a refund if money is 
erroneously collected on a Commerce debt?

    Commerce entities shall promptly refund to a debtor any amount 
collected on a Commerce debt when the Commerce debt is waived or 
otherwise found not to be owed to the United States, or as otherwise 
required by law. Refunds under this part shall not bear interest unless 
required by law.

[[Page 175]]



   Subpart C_Procedures for Offset of Commerce Department Payments To 
              Collect Debts Owed to Other Federal Agencies



Sec. 19.20  How do other Federal agencies use the offset process
to collect debts from payments issued by a Commerce entity?

    (a) Offset of Commerce entity payments to collect debts owed to 
other Federal agencies. (1) In most cases, Federal agencies submit debts 
to the Treasury Offset Program to collect delinquent debts from payments 
issued by Commerce entities and other Federal agencies, a process known 
as ``centralized offset.'' When centralized offset is not available or 
appropriate, any Federal agency may ask a Commerce entity (when acting 
as a ``payment agency'') to collect a debt owed to such agency by 
offsetting funds payable to a debtor by the Commerce entity, including 
salary payments issued to Commerce entity employees. This section and 
Sec. 19.21 of this subpart C apply when a Federal agency asks a Commerce 
entity to offset a payment issued by the Commerce entity to a person who 
owes a debt to the United States.
    (2) This subpart C does not apply to Commerce debts. See Secs. 19.10 
through 19.12 of this part for offset procedures applicable to Commerce 
debts.
    (3) This subpart C does not apply to the collection of non-Commerce 
debts through tax refund offset. See 31 CFR 285.2 for tax refund offset 
procedures.
    (b) Administrative offset (including salary offset); certification. 
A Commerce entity will initiate a requested offset only upon receipt of 
written certification from the creditor agency that the debtor owes the 
past-due, legally enforceable debt in the amount stated, and that the 
creditor agency has fully complied with all applicable due process and 
other requirements contained in 31 U.S.C. 3716, 5 U.S.C. 5514, and the 
creditor agency's regulations, as applicable. Offsets will continue 
until the debt is paid in full or otherwise resolved to the satisfaction 
of the creditor agency.
    (c) Where a creditor agency makes requests for offset. Requests for 
offset under this section shall be sent to the Department of Commerce, 
ATTN: Deputy Chief Financial Officer, 1401 Constitution Avenue NW., Room 
D200, Washington, DC 20230. The Deputy Chief Financial Officer will 
forward the request to the appropriate Commerce entity for processing in 
accordance with this subpart C.
    (d) Incomplete certification. A Commerce entity will return an 
incomplete debt certification to the creditor agency with notice that 
the creditor agency must comply with paragraph (b) of this section 
before action will be taken to collect a debt from a payment issued by a 
Commerce entity.
    (e) Review. A Commerce entity is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (f) When Commerce entities will not comply with offset request. A 
Commerce entity will comply with the offset request of another agency 
unless the Commerce entity determines that the offset would not be in 
the best interests of the United States, or would otherwise be contrary 
to law.
    (g) Multiple debts. When two or more creditor agencies are seeking 
offsets from payments made to the same person, or when two or more debts 
are owed to a single creditor agency, the Commerce entity that has been 
asked to offset the payments may determine the order in which the debts 
will be collected or whether one or more debts should be collected by 
offset simultaneously.
    (h) Priority of debts owed to Commerce entity. For purposes of this 
section, debts owed to a Commerce entity generally take precedence over 
debts owed to other agencies. The Commerce entity that has been asked to 
offset the payments may determine whether to pay debts owed to other 
agencies before paying a debt owed to a Commerce entity. The Commerce 
entity that has been asked to offset the payments will determine the 
order in which the debts will be collected based on the best interests 
of the United States.

[[Page 176]]



Sec. 19.21  What does a Commerce entity do upon receipt of a request
to offset the salary of a Commerce entity employee to collect a debt
owed by the employee to another Federal agency?

    (a) Notice to the Commerce employee. When a Commerce entity receives 
proper certification of a debt owed by one of its employees, the 
Commerce entity will begin deductions from the employee's pay at the 
next officially established pay interval. The Commerce entity will send 
a written notice to the employee indicating that a certified debt claim 
has been received from the creditor agency, the amount of the debt 
claimed to be owed by the creditor agency, the date deductions from 
salary will begin, and the amount of such deductions.
    (b) Amount of deductions from Commerce employee's salary. The amount 
deducted under Sec. 19.20(b) of this part will be the lesser of the 
amount of the debt certified by the creditor agency or an amount up to 
15 percent of the debtor's disposable pay. Deductions shall continue 
until the Commerce entity knows that the debt is paid in full or until 
otherwise instructed by the creditor agency. Alternatively, the amount 
offset may be an amount agreed upon, in writing, by the debtor and the 
creditor agency. See Sec. 19.12(g) (salary offset process).
    (c) When the debtor is no longer employed by the Commerce entity--
(1) Offset of final and subsequent payments. If a Commerce entity 
employee retires or resigns or if his or her employment ends before 
collection of the debt is complete, the Commerce entity will continue to 
offset, under 31 U.S.C. 3716, up to 100 percent of an employee's 
subsequent payments until the debt is paid or otherwise resolved. Such 
payments include a debtor's final salary payment, lump-sum leave 
payment, and other payments payable to the debtor by the Commerce 
entity. See 31 U.S.C. 3716 and 5 CFR 550.1104(l) and 550.1104(m).
    (2) Notice to the creditor agency. If the employee is separated from 
the Commerce entity before the debt is paid in full, the Commerce entity 
will certify to the creditor agency the total amount of its collection. 
If the Commerce entity is aware that the employee is entitled to 
payments from the Civil Service Retirement and Disability Fund, Federal 
Employee Retirement System, or other similar payments, the Commerce 
entity will provide written notice to the agency making such payments 
that the debtor owes a debt (including the amount) and that the 
provisions of 5 CFR 550.1109 have been fully complied with. The creditor 
agency is responsible for submitting a certified claim to the agency 
responsible for making such payments before collection may begin. 
Generally, creditor agencies will collect such monies through the 
Treasury Offset Program as described in Sec. 19.9(c) of this part.
    (3) Notice to the debtor. The Commerce entity will provide to the 
debtor a copy of any notices sent to the creditor agency under paragraph 
(c)(2) of this section.
    (d) When the debtor transfers to another Federal agency--(1) Notice 
to the creditor agency. If the debtor transfers to another Federal 
agency before the debt is paid in full, the Commerce entity will notify 
the creditor agency and will certify the total amount of its collection 
on the debt. The Commerce entity will provide a copy of the 
certification to the creditor agency. The creditor agency is responsible 
for submitting a certified claim to the debtor's new employing agency 
before collection may begin.
    (2) Notice to the debtor. The Commerce entity will provide to the 
debtor a copy of any notices and certifications sent to the creditor 
agency under paragraph (d)(1) of this section.
    (e) Request for hearing official. A Commerce entity will provide a 
hearing official upon the creditor agency's request with respect to a 
Commerce entity employee. See 5 CFR 550.1107(a).

[[Page 177]]



PART 20_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
20.1  The purpose of DOC's age discrimination regulations.
20.2  Programs or activities to which these regulations apply.
20.3  Definitions.

         Subpart B_Standards for Determining Age Discrimination

20.4  Rules against age discrimination.
20.5  Exceptions to the rules.
20.6  Burden of proof.

              Subpart C_Responsibilities of DOC Recipients

20.7  General responsibilities.
20.8  Notice to subrecipients.
20.9  Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

20.10  Compliance reviews.
20.11  Complaints.
20.12  Mediation.
20.13  Investigation.
20.14  Prohibition against intimidation or retaliation.
20.15  Compliance procedure.
20.16  Hearings, decisions, post-termination proceedings.
20.17  Remedial action by recipients.
20.18  Alternative funds disbursal procedure.
20.19  Private lawsuits after exhaustion of administrative remedies.

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
sec. 6101 et seq. and the government-wide regulations implementing the 
Act, 45 CFR Part 90.

    Source: 51 FR 28926, Aug. 13, 1986, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 20 appear at 68 FR 
51355, Aug. 26, 2003.



                            Subpart A_General



Sec. 20.1  The purpose of DOC's age discrimination regulations.

    The purpose of these regulations is to set out DOC's policies and 
procedures under the Age Discrimination Act of 1975 and the general age 
discrimination regulations at 45 CFR Part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally assisted programs or activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec. 20.2  Programs or activities to which these regulations apply.

    (a) The Act and these regulations apply to each DOC recipient and to 
each program or activity operated by the recipient which receives 
Federal financial assistance provided by any entity of DOC.
    (b) The Act and these regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice or any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment.



Sec. 20.3  Definitions.

    As used in these regulations, the following terms are defined as 
follows:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.

[[Page 178]]

    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example: ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    (g) DOC means the U.S. Department of Commerce.
    (h) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the agency provides or otherwise makes available assistance in the form 
of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced considerations; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    (i) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (j) Program or activity means all of the operations of any entity 
described in paragraphs (j)(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 (j)(1),(2), or (3) of this section.
    (k) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political sub-division, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    (l) Secretary means the Secretary of Commerce or his or her 
designee.
    (m) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance adopted by an elected, general purpose legislative body.
    (n) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    (o) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal Zone, the Northern Marianas, and the territories and possessions 
of the United States.

[51 FR 28926, Aug. 13, 1986, as amended at 68 FR 51354, Aug. 26, 2003]

[[Page 179]]



         Subpart B_Standards for Determining Age Discrimination



Sec. 20.4  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. 20.5.
    (a) General rule: No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity receiving 
Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance, or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.
    (d) If a recipient operating a program or activity provides special 
benefits to the elderly or to children, such use of age distinctions 
shall be presumed to be necessary to the normal operation of the program 
or activity, notwithstanding the provisions of Sec. 20.5.



Sec. 20.5  Exceptions to the rules.

    (a) Normal operations or statutory objective of any program or 
activity. A recipient is permitted to take an action otherwise 
prohibited by Sec. 20.4 if the action reasonably considers age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action meets this 
standard if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics; and
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective or the program or activity; and
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual bases.
    (b) Reasonable factors other than age. A recipient is permitted to 
take an action otherwise prohibited by Sec. 20.4 which is based on a 
factor other than age, even though that action may have a 
disproportionate effect on persons of different ages. An action may be 
based on a factor other than age only if the factor bears a direct and 
substantial relationship to the normal operation of the program or 
activity or to the achievement of a statutory objective.



Sec. 20.6  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. 20.5 is on the recipient of 
Federal financial assistance.



              Subpart C_Responsibilities of DOC Recipients



Sec. 20.7  General responsibilities.

    Each DOC recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act, the general 
regulations, and these regulations, and shall take steps to eliminate 
violation of the Act.
    (a) Each DOC recipient will provide an assurance that the program or 
activity for which it is receiving Federal financial assistance will be 
conducted in compliance with all requirements for the Act and these and 
other DOC regulations. A recipient also has responsibility to maintain 
records, provide information, and to afford DOC reasonable access to its 
records and facilities to the extent necessary to determine whether it 
is in compliance with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) To assess the 
recipient's compliance with the Act, DOC may, as part of a compliance 
review under Sec. 20.10 or a complaint investigation under Sec. 20.11, 
require a recipient employing the

[[Page 180]]

equivalent or 15 or more employees, to complete, in a manner specified 
by the responsible Department official, a written self-evaluation of any 
age distinction imposed in its program or activity receiving Federal 
financial assistance from DOC.
    (2) Whenever an assessment indicates a violation of the Act and the 
DOC regulations, the recipient shall take corrective action.



Sec. 20.8  Notice to subrecipients.

    Where a recipient passes on Federal financial assistant from DOC to 
subrecipients, the recipient shall give subrecipients written notice of 
their obligations under the Act and these regulations.



Sec. 20.9  Information requirements.

    Upon DOC's request, each recipient shall provide access and make 
information available for DOC to determine whether the recipient is 
complying with the Act and these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec. 20.10  Compliance reviews.

    (a) DOC may conduct compliance reviews and pre-award reviews or use 
other similar procedures that will permit it to investigate and correct 
violations of the Act and these regulations. DOC may conduct such review 
even in the absence of a complaint against a recipient. The review may 
be as comprehensive as necessary to determine whether a violation of the 
Act and these regulations has occurred.
    (b) If a compliance review of pre-award review indicates a violation 
of the Act or these regulations, DOC will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, DOC 
will arrange for enforcement as described in Sec. 20.15.



Sec. 20.11  Complaints.

    (a) Any person, individually, or as a member of a class, or on 
behalf of others, may file a complaint with DOC alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause shown, DOC may 
extend this time limit.
    (b) DOC will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement 
which: identifies the parties involved and the date the complainant 
first had knowledge of the alleged violation; describes generally the 
action or practice complained of; and is signed by the complainant;
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint;
    (3) Considering as the filing date, the date on which a complaint is 
sufficient to be processed;
    (4) Notifiying the complainant and the recipient of their rights and 
obligations under the compliant procedure, including the right to have a 
representative at all stages of the process;
    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOC for information and 
assistance regarding the complaint resolution process.
    (c) DOC will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec. 20.12  Mediation.

    (a) DOC will refer to a mediation service designated by the 
Secretary all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations, 
unless the age distinction complained of is clearly within an exception; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or to 
make an informed judgment that an agreement is not possible.

[[Page 181]]

    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to DOC. DOC will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator is required to protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained, in the course of the 
mediation process without prior approval of the head or the mediation 
service.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with DOC. Mediation ends if:
    (1) 60 days elapse from the time DOC receives the complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to DOC.



Sec. 20.13  Investigation.

    (a) Informal investigation:
    (1) DOC will investigate complaints that are unresolved after 
mediation or are reopended because of a violation of a mediation 
agreement.
    (2) As part of the initial investigation, DOC will use informal 
factfinding methods, including joint or separate discussions with the 
complainant and recipient, to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. DOC may seek the assistance of any involved State agency.
    (3) DOC will put any agreement in writing and have it signed by the 
parties and an authorized offical at DOC.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOC, including compliance reviews and 
investigation or other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation: If DOC cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of these regulations, DOC will attempt to obtain 
voluntary compliance. If DOC cannot obtain voluntary compliance, it will 
begin enforcement as described in Sec. 8a.15.



Sec. 20.14  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of DOC's investigation, conciliation, and enforcement process.



Sec. 20.15  Compliance procedure.

    (a) DOC may enforce the Act and these regulations by:
    (1) Terminating the Federal financial assistance to the recipient 
under the program or activity found to have violated the Act or these 
regulations. The determination of the recipient's violation may be made 
only after a recipient has had an opportunity for a hearing on the 
record before an administrative law judge. If a case is settled during 
mediation, or prior to hearing, Federal financial assistance to the 
program or activity will not be terminated.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) DOC will limit any termination under this section to the 
particular recipient and particular program or activity or part of such 
program or activity DOC finds in violation of these regulations. DOC 
will not base any part of

[[Page 182]]

a termination on a finding with respect to any program or activity of 
the recipient which does not receive Federal financial assistance from 
DOC.
    (c) DOC will take no action under paragraph (a) until:
    (1) The head of the organization providing the financial assistance 
has advised the recipient of its failure to comply with the Act and 
these regulations and has determined that voluntary compliance cannot be 
obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the program or 
activity involved. The Secretary will file a report whenever any action 
is taken under paragraph (a).
    (d) DOC also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec. 20.16 is initiated.
    (1) New Federal financial assistance from DOC includes all 
assistance for which DOC requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from DOC does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 20.16.
    (2) DOC will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec. 20.16. DOC will not 
continue a deferral for more than 60 days unless a hearing has begun 
within that time, or the time for beginning the hearing has been 
extended by mutual consent of the recipient and the head of the 
organization providing Federal financial assistance. DOC will not 
continue a deferral for more than 30 days after the close of the 
hearing, unless the hearing results in a finding against the recipient.
    (3) DOC will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity DOC 
finds in violation of these regulations. DOC will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not, and would not in connection with the new 
funds, receive Federal financial assistance for DOC.



Sec. 20.16  Hearings, decisions, post-termination proceedings.

    Certain DOC procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to DOC enforcement of these regulations. 
They are found in 15 CFR Part 8, Sec. 8.12 and Sec. 8.13.



Sec. 20.17  Remedial action by recipients.

    (a) Where DOC finds that a recipient has discriminated on the basis 
of age, the recipient shall take any remedial action that DOC may 
require to overcome the effects of the discrimination. If another 
recipient exercises control over the recipient that has discriminated, 
DOC may require both recipients to take remedial action.
    (b) Even in the absence of a finding of discrimination, a recipient 
may take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.



Sec. 20.18  Alternative funds disbursal procedure.

    (a) When, under the provisions of these regulations, DOC terminates 
the funding of a recipient, the Secretary may, using undisbursed funds 
from the terminated award, make a new award to an alternate recipient, 
i.e. any public or non-profit private organization or agency, or State 
or political subdivision of the State.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.



Sec. 20.19  Private lawsuits after exhaustion of administrative 
remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and

[[Page 183]]

DOC has made no finding with regard to the complaint; or
    (2) DOC issues any finding in favor of the recipient.
    (b) If DOC fails to make a finding within 180 days or issues a 
finding in favor of recipient, DOC shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring civil action 
for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary, the Attorney General of 
the United States, and the recipient;
    (iv) The notice shall contain the alleged violation of the Act, the 
relief requested, the court in which the complainant is bringing the 
action, and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

                         PARTS 21	22 [RESERVED]



PART 23_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN--Table of Contents



Sec.
23.1  Purpose.
23.2  Contact person.
23.3  Plan.
23.4  Cost and percentage estimates.
23.5  Report to the Office of Juvenile Justice and Delinquency 
          Prevention.
23.6  Definitions.
23.7  Notice to Department of Commerce organizational units of 
          implementation and procedures.

    Authority: 39 U.S.C. 3220(a)(2); 5 U.S.C. 301.

    Source: 51 FR 46614, Dec. 24, 1986, unless otherwise noted.



Sec. 23.1  Purpose.

    These regulations are intended to comply with 39 U.S.C. 3220(a)(2), 
and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) 
guidelines (50 FR 46622), to assist in the location and recovery of 
missing children through the use of penalty mail.



Sec. 23.2  Contact person.

    Tim Coss, Office of Administrative Services Operations, U.S. 
Department of Commerce (H2063), 14th and Constitution Ave., NW., 
Washington, DC 20230, Telephone (202) 377-2108.



Sec. 23.3  Plan.

    (a) The Department of Commerce will supplement and expand the 
national effort to assist in the location and recovery of missing 
children through the economical use of missing children information in 
domestic penalty mail directed to the public and Federal employees.
    (b) The Department of Commerce may include, on or inside authorized 
types of penalty mail, pictures and biographical data related to missing 
children, provided such use is determined to be cost effective. The 
authorized types of penalty mail include:
    (1) All envelopes; and
    (2) Self-mailer publications (newsletters, bulletins, etc.) with a 
shelf-life of no more than 90 days.
    (c) The manner in which pictures and biographical data may be used 
includes:
    (1) Printing on envelopes at the time they are initially printed 
with the United States Postal Service (USPS) required postal code 
identification;
    (2) Printed inserts that are placed in envelopes along with other 
mailing material;
    (3) Stickers that are printed and placed on envelopes prior to 
mailing; and
    (4) Printing as part of the content of self-mailers such as bureau 
newsletters, bulletins, etc.
    (d) Missing children information will not be placed on letter-size 
envelopes in the areas described as the ``Penalty Indicia Area,'' ``OCR 
Read Area,'' ``Bar

[[Page 184]]

Code Read Area,'' and ``Return Address Area'' per Appendix A of the 
OJJDP guidelines.
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which the Department of Commerce 
will obtain the camera-ready and other photographic and biographical 
materials for use by organizational units. Photographs which were 
reasonably current as of the time of the child's disappearance shall be 
the only acceptable form of visual media or pictorial likeness used on 
or in penalty mail.
    (f) The Department of Commerce will remove all printed penalty mail 
envelopes and other materials from circulation or other use (i.e., use 
or destroy) within 90 days of notification by the National Center of the 
need to withdraw penalty mail envelopes and other materials related to a 
particular child from circulation. The Department of Commerce will not 
include missing children information on blank pages or covers of items 
such as those to be included in the Superintendent of Documents' Sales 
Program, or to be distributed to Depository Libraries, as such material 
generally could not be withdrawn from use within 90 days of 
notification. The National Center will be responsible for immediately 
notifying the Department Contact Person, in writing, of the need to 
withdraw from circulation penalty mail envelopes and other materials 
related to a particular child.
    (g) The Department of Commerce will give priority:
    (1) To penalty mail that is addressed to the public for receipt in 
the United States, its territories and possessions; and
    (2) To inter- and intra-agency publications and other media that 
will be widely disseminated to and viewed by Federal employees.
    (h) All suggestions and/or recommendations for innovative, cost-
effective techniques should be forwarded to the Department Contact 
Person. The Department Contact Person shall conduct biannual meetings of 
departmental representatives to discuss the current plan and 
recommendations for future plans.
    (i) This shall be the sole regulation implementing this program for 
the Department of Commerce.



Sec. 23.4  Cost and percentage estimates.

    It is estimated that this program will cost the Department of 
Commerce $39,530 in the first year. It is the Department of Commerce's 
estimate that 9% of its penalty mail will transmit missing children 
photographs and information when the program is fully implemented.



Sec. 23.5  Report to the Office of Juvenile Justice and Delinquency 
Prevention.

    The Department of Commerce will compile and submit a consolidated 
report to OJJDP, by June 30, 1987, on its experience in implementation 
of 39 U.S.C. 3220(a) (2), the OJJDP guidelines, and the Department of 
Commerce's regulation. This report will cover the period from December 
24, 1986 through March 31, 1987, and provide detail on:
    (a) The Department of Commerce's experience in implementation 
(including problems encountered), successful and/or innovative methods 
adopted to use missing children photographs and information on or in 
penalty mail, the estimated number of pieces of penalty mail containing 
such information, and the percentage of total penalty mail directed to 
the public which included missing children information.
    (b) The estimated total cost to implement the program, with 
supporting detail, and
    (c) Recommendations for changes in the program to make it more 
effective.



Sec. 23.6  Definitions.

    (a) Operating units. Bureaus and other organizational entities 
outside the Office of the Secretary charged with carrying out specified 
substantive functions (i.e., programs).
    (b) Organizational units. The organizational units within the 
Department of Commerce are:

Office of the Secretary
Bureau of Economic Analysis
Economic Development Administration
Bureau of the Census
International Trade Administration
Minority Business Development Agency

[[Page 185]]

National Bureau of Standards
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
National Technical Information Service
Patent and Trademark Office
United States Travel and Tourism Administration



Sec. 23.7  Notice to Department of Commerce organizational units of
implementation and procedures.

    Following are roles and responsibilities for the program within the 
Department of Commerce.
    (a) The Department Contact Person shall:
    (1) Serve as the Department of Commerce's sole representative for 
ordering materials, including camera-ready negatives, from the National 
Center,
    (2) Serve as the Department of Commerce's sole supplier of materials 
to Operating Units,
    (3) Maintain a current list of personnel within each Operating Unit 
who are authorized to order materials,
    (4) Notify Operating Units whenever permission to use information on 
a missing child has been withdrawn,
    (5) Ensure that only current missing children materials are 
distributed to Operating Units, and that only those requests from 
authorized departmental representatives are filled,
    (6) Prepare all required departmental reports on the program,
    (7) Promulgate any departmentwide operating instructions deemed 
appropriate for the program, and
    (8) Chair biannual meetings of departmental representatives to 
discuss the program and identify additional opportunities to use the 
missing children data with penalty mail.
    (b) The Head of each Operating Unit (and for the Office of the 
Secretary, the Director of the Office of Administrative Services 
Operations), or his/her representative, shall:
    (1) Designate a single person to act as the Operating Unit's 
representative to the Department for requesting and controlling missing 
children materials and receiving notification to withdraw materials from 
use (an alternative may be designated to act in the representative's 
absence),
    (2) Provide the Department Contact Person with the name, title, 
telephone number, and room number of the Operating Unit's representative 
for the program (and also for the alternate, if one is designated), and 
notify the Department of changes when they occur,
    (3) Ensure that the shelf-life of printed penalty mail materials 
containing missing children information is limited to a maximum of three 
months,
    (4) Ensure that information on a child is not used once permission 
has been withdrawn and the shelf-life for the material would keep the 
information available for greater than 90 days after the date that 
permission to use it was withdrawn,
    (5) Direct that the Operating Unit representative (or alternate) 
order missing children information, as appropriate, only from the 
Department Contact Person,
    (6) Comply with policies, procedures, and operating instructions 
issued by the Department,
    (7) Maintain necessary information to prepare required reports and 
submit them in accordance with requirements,
    (8) Provide only current camera-ready and other photographic and 
biographical materials to printers, including those at the 
Administrative Support Centers, and
    (9) Otherwise determine and control the use of missing children 
materials and information by the Operating Unit.
    (c) The Director of each Administrative Support Center, or his/her 
representatives, shall:
    (1) Cooperate with serviced Operating Units to promote the use of 
missing children information on penalty mail,
    (2) As directed by an Operating Unit, utilize camera-ready and other 
photographic and biographical material provided by the Operating Unit in 
preparation of material for use with penalty mail, and
    (3) Assure that any printing performed or procured under its 
direction is in accordance with the type of material and the manner of 
presentation as prescribed in this regulation.

                           PART 24 [RESERVED]

[[Page 186]]



PART 25_PROGRAM--Table of Contents



                          Fraud Civil Remedies

Sec.
25.1  Basis and purpose.
25.2  Definitions.
25.3  Basis for civil penalties and assessments.
25.4  Investigation.
25.5  Review by the reviewing official.
25.6  Prerequisites for issuing a complaint.
25.7  Complaint.
25.8  Service of complaint.
25.9  Answer.
25.10  Default upon failure to file an answer.
25.11  Referral of complaint and answer to the ALJ.
25.12  Notice of hearing.
25.13  Parties to the hearing.
25.14  Separation of functions.
25.15  Ex parte contacts.
25.16  Disqualification of reviewing official or ALJ.
25.17  Rights of parties.
25.18  Authority of the ALJ.
25.19  Prehearing conferences.
25.20  Disclosure of documents.
25.21  Discovery.
25.22  Exchange of witness lists, statements, and exhibits.
25.23  Subpoena for attendance at hearing.
25.24  Protective order.
25.25  Fees.
25.26  Form, filing and service of papers.
25.27  Computation of time.
25.28  Motions.
25.29  Sanctions.
25.30  The hearing and burden of proof.
25.31  Determining the amount of penalties and assessments.
25.32  Location of hearing.
25.33  Witnesses.
25.34  Evidence.
25.35  The record.
25.36  Post-hearing briefs.
25.37  Initial decision.
25.38  Reconsideration of initial decision.
25.39  Appeal to authority head.
25.40  Stays ordered by the Department of Justice.
25.41  Stay pending appeal.
25.42  Judicial review.
25.43  Collection of civil penalties and assessments.
25.44  Right to administrative offset.
25.45  Deposit in Treasury of United States.
25.46  Compromise or settlement.
25.47  Limitations.

    Authority: Secs. 6101-6104, Pub. L. 99-509, 100 Stat. 1874 (31 
U.S.C. 3801-3812); 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: 55 FR 47854, Nov. 16, 1990, unless otherwise noted.

                          Fraud Civil Remedies



Sec. 25.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, section 6101-6104, 100 Stat. 1874 (October 
21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement the provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec. 25.2  Definitions.

    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Department of Commerce.
    Authority head means the Secretary of the Department of Commerce, or 
designee.
    Benefit means, except as the context otherwise requires, anything of 
value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or

[[Page 187]]

    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the respondent under Sec. 25.7.
    Department means the Department of Commerce.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Secs. 25.10 or 25.37, and includes a revised initial decision issued 
following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the Department 
of Commerce or an officer or employee of the Office of the Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberative ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization and includes the plural of that term.
    Representative means any attorney who is a member in good standing 
of the bar of any State, Territory, or possession of the United States 
or of the District of Columbia or the Commonwealth of Puerto Rico.
    Respondent means any person alleged in a complaint under Sec. 25.7 
to be liable for a civil penalty or assessment under Sec. 25.3.
    Reviewing official means the General Counsel of the Department or 
his or her designee who is serving in a position for which the rate of 
basic pay is not less than the minimum rate of basic pay for grade GS-16 
under the General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from,

the authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or benefit.



Sec. 25.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Any person who makes a claim that the person knows 
or has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes, or is supported by, any written statement which 
asserts a material fact which is false, fictitious, or fraudulent;
    (iii) Includes, or is supported by, any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and

[[Page 188]]

    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim made on or before October 23, 
1996, and of not more than $5,500 for each such claim made after October 
23, 1996.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made payment (including transferred 
property or provided services) or a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of the section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement made on or before October 23, 1996, and of not more than 
$5,500 for each such statement made after October 23, 1996.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provide services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[55 FR 47854, Nov. 16, 1990, as amended at 61 FR 55094, Oct. 24, 1996]



Sec. 25.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official, or the person designated to receive the 
documents, a certification that--
    (i) The documents sought have been produced;
    (ii) Such documents are not available and the reasons therefore; or

[[Page 189]]

    (iii) Such documents, suitably identified, have been withheld based 
upon the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to avoid interference with a 
criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 25.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 25.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 25.3, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to issue a complaint under 
Sec. 25.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of 
Sec. 25.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments. Such a statement may be 
based upon information then known or an absence of any information 
indicating that the person may be unable to pay such an amount.



Sec. 25.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 25.7 
only if--
    (1) The Department of Justice approved the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 25.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money, or the value of property or services, demanded or 
requested in violation of Sec. 25.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 25.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the respondent, as provided 
in Sec. 25.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the respondent, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
respondent may be held liable;

[[Page 190]]

    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the respondent's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the respondent with a copy of these regulations.



Sec. 25.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual making service;
    (2) An acknowledged United States Postal Service return receipt 
card; or
    (3) Written acknowledgment of the respondent or his or her 
representative.



Sec. 25.9  Answer.

    (a) The respondent may request a hearing by filing an answer with 
the reviewing official within 30 days of service of the complaint. An 
answer shall be deemed to be a request for hearing.
    (b) In the answer, the respondent--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the respondent intends to rely;
    (3) May state any reasons why the respondent contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the respondent to act as respondent's 
representative, if any.



Sec. 25.10  Default upon failure to file an answer.

    (a) If the respondent does not file an answer within the time 
prescribed in Sec. 25.9(a), the reviewing official may refer the 
complaint to the ALJ along with the proof of service, as provided in 
Sec. 25.8(b).
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on the respondent in the manner prescribed in Sec. 25.8, a notice that 
an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec. 25.3, the ALJ 
shall issue an initial decision imposing the maximum amount of penalties 
and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the respondent waives any right to further review of 
the penalties and assessments imposed under paragraph (c) of this 
section, and the initial decision shall become final binding upon the 
parties 30 days after it is issued.
    (e) If, before such an initial decision becomes final, the 
respondent files motion with the ALJ seeking to reopen on the grounds 
that extraordinary circumstances prevented the respondent from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the respondent can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the respondent an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a respondent's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 25.38.
    (h) The respondent may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the respondent files a timely notice of appeal with the 
authority head,

[[Page 191]]

the ALJ shall forward the record of the proceeding to the authority 
head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the respondent's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the respondent's failure to file a timely answer, the authority 
head shall remand the case of the ALJ with instructions to grant the 
respondent an opportunity to answer.
    (l) If the authority head decides that the respondent's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec. 25.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 25.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the respondent in the manner 
prescribed by Sec. 25.8. At the same time, the ALJ shall send a copy of 
such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the respondent, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 25.13  Parties to the hearing.

    (a) The parties to the hearing shall be the respondent and the 
authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 25.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) The reviewing official shall, after consulting with the 
Inspector General, designate the representative for the Government, who 
shall be an attorney with either the Office of General Counsel or the 
Office of the Inspector General. The reviewing official's decision is 
final.



Sec. 25.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 25.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.

[[Page 192]]

    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 25.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 25.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 25.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;

[[Page 193]]

    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 25.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the respondent 
may review any relevant and material documents, transcripts, records, 
and other materials that related to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 25.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the respondent may obtain copies of such 
documents.
    (b) Upon written request to the reviewing official, the respondent 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 25.5 is not discoverable under any 
circumstances.
    (d) The respondents may file a motion to compel dosclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 25.9.



Sec. 25.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Secs. 25.22 and 25.23, the 
term ``documents'' includes information, documents, reports, answers, 
records, accounts, papers, and other data and documentary evidence. 
Nothing contained herein shall be interpreted to require the creation of 
a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within two days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in 
Sec. 25.34.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 25.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce

[[Page 194]]

documents. The subpoena shall specify the time and place at which the 
deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 25.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 25.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 25.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 25.23  Subpoena for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request 
therefore not less than 15 days before the date fixed for the hearing 
unless otherwise allowed by the ALJ for good cause shown: Such request 
shall specify any documents to be produced and shall designate the 
witnesses and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 25.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 25.24  Protective order.

    (a) A party of a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;

[[Page 195]]

    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as direct by the 
ALJ.



Sec. 25.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the Department of 
Commerce, a check for witness fees and mileage need not accompany the 
subpoena.



Sec. 25.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and one copy.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of, the party of the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing shall be made by deliverying or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 25.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by mail, an 
additional five days will be added to the time permitted for any 
response.



Sec. 25.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but

[[Page 196]]

may overrule or deny such motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 25.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 25.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the respondent is liable for a civil penalty or 
assessment under Sec. 25.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove respondent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The respondent shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 25.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted ordinarily double 
assessment, in lieu of damages, and a significant civil penalty should 
be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the respondent's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;

[[Page 197]]

    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such program;
    (8) Whether the respondent has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the respondent attempted to conceal the misconduct;
    (10) The degree to which the respondent has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
respondent, the extent to which the respondent's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the respondent cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the respondent assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the respondent's sophistication with respect to it, including the extent 
of the respondent's prior participation in the program or in similar 
transactions;
    (15) Whether the respondent has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State directly or indirectly; and
    (16) The need to deter the respondent and others from engaging in 
the same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 25.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
respondent resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the respondent and 
the ALJ.
    (b) Each party shall have the opportunity to present arguments with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 25.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statements 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in 
Sec. 25.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to--
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth;
    (2) Avoid needless consumption of time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse

[[Page 198]]

party or a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 25.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and inmaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 25.24.



Sec. 25.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 25.24.



Sec. 25.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 25.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 25.3.
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 25.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall as the same time 
serve all respondents with a statement describing the right of any 
respondent determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the

[[Page 199]]

parties of the reason for the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 25.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec. 25.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 25.39.



Sec. 25.39  Appeal to authority head.

    (a) Any respondent who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec. 25.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30 day period for an 
additional 30 days if the respondent files with the authority head a 
request for an extension within the initial 30 day period and shows good 
cause.
    (c) If the respondent files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there was reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand,

[[Page 200]]

or settle any penalty or assessment determined by the ALJ in any initial 
decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a respondent has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the respondent with a copy of the authority head's decision, a 
determination that a respondent is liable under Sec. 25.3 is final and 
is not subject to judicial review.



Sec. 25.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process and it shall be resumed only upon receipt of the written 
authorization of the Attorney General.



Sec. 25.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 25.42  Judicial review.

    Section 3805 of title 31, United States Code, authorized judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 25.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 25.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Secs. 25.42 and 25.43, or 
any amount agreed upon in a compromise or settlement under Sec. 25.46, 
may be collected by administrative offset under 31 U.S.C. 3716, except 
that an administrative offset may not be made under this subsection 
against a refund of an overpayment of Federal taxes, then or later owing 
by the United States to the respondent.



Sec. 25.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 25.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision. If the designated 
representative of the Government is not with the Office of General 
Counsel, the representative shall forward all settlement offers to the 
reviewing official and cannot negotiate a compromise or settlement with 
the respondent except as directed by the reviewing official.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 25.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 25.43.

[[Page 201]]

    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 25.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 25.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 25.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the respondent fails to file a timely answer, service of a 
notice under Sec. 25.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.

                           PART 26 [RESERVED]



PART 27_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
27.101  To what does this policy apply?
27.102  Definitions.
27.103  Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
27.104-27.106  [Reserved]
27.107  IRB membership.
27.108  IRB functions and operations.
27.109  IRB review of research.
27.110  Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
27.111  Criteria for IRB approval of research.
27.112  Review by institution.
27.113  Suspension or termination of IRB approval of research.
27.114  Cooperative research.
27.115  IRB records.
27.116  General requirements for informed consent.
27.117  Documentation of informed consent.
27.118  Applications and proposals lacking definite plans for 
          involvement of human subjects.
27.119  Research undertaken without the intention of involving human 
          subjects.
27.120  Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
27.121  [Reserved]
27.122  Use of Federal funds.
27.123  Early termination of research support: Evaluation of 
          applications and proposals.
27.124  Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28019, June 18, 1991, unless otherwise noted.



Sec. 27.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 27.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in 
Sec. 27.102(e) must be reviewed and approved, in compliance with 
Sec. 27.101, Sec. 27.102, and Sec. 27.107 through Sec. 27.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational

[[Page 202]]

practices, such as (i) research on regular and special education 
instructional strategies, or (ii) research on the effectiveness of or 
the comparison among instructional techniques, curricula, or classroom 
management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or
    (ii) Federal statute(s) require(s) without exception that the 
confidentiality of the personally identifiable information will be 
maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies,
    (i) If wholesome foods without additives are consumed or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these

[[Page 203]]

circumstances, if a department or agency head determines that the 
procedures prescribed by the institution afford protections that are at 
least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in such other manner as provided in department or agency procedures. \1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR part 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR part 46.101(b)(2), for 
research involving survey or interview procedures or observation of 
public behavior, does not apply to research with children, subpart D, 
except for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28019, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. 27.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a

[[Page 204]]

context in which an individual can reasonably expect that no observation 
or recording is taking place, and information which has been provided 
for specific purposes by an individual and which the individual can 
reasonably expect will not be made public (for example, a medical 
record). Private information must be individually identifiable (i.e., 
the identity of the subject is or may readily be ascertained by the 
investigator or associated with the information) in order for obtaining 
the information to constitute research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 27.103  Assuring compliance with this policy--research conducted
or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for federalwide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office for 
Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 27.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for

[[Page 205]]

example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 27.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 27.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 27.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 27.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]

[[Page 206]]



Secs. 27.104-27.106  [Reserved]



Sec. 27.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 27.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 27.103(b)(4) and, to the extent required by, Sec. 27.103(b)(5).
    (b) Except when an expedited review procedure is used (see 
Sec. 27.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 27.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 27.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 27.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 27.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its

[[Page 207]]

decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.110  Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved 
research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.
    Under an expedited review procedure, the review may be carried out 
by the IRB chairperson or by one or more experienced reviewers 
designated by the chairperson from among members of the IRB. In 
reviewing the research, the reviewers may exercise all of the 
authorities of the IRB except that the reviewers may not disapprove the 
research. A research activity may be disapproved only after review in 
accordance with the non-expedited procedure set forth in Sec. 27.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the

[[Page 208]]

subject's legally authorized representative, in accordance with, and to 
the extent required by Sec. 27.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 27.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 27.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 27.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 27.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is 
Sec. 27.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 27.103(b)(4) and Sec. 27.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 27.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of

[[Page 209]]

the research. All records shall be accessible for inspection and copying 
by authorized representatives of the department or agency at reasonable 
times and in a reasonable manner.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and

[[Page 210]]

    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 27.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 27.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each

[[Page 211]]

subject will be asked whether the subject wants documentation linking 
the subject with the research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under control number 
0990-0260)

[56 FR 28012, 28019, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 27.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subject's involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 27.101 (b) or (i), no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the department or 
agency.



Sec. 27.119  Research undertaken without the intention of involving
human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 27.120  Evaluation and disposition of applications and proposals
for research to be conducted or supported by a Federal Department
or Agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 27.121  [Reserved]



Sec. 27.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 27.123  Early termination of research support: Evaluation 
of applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program

[[Page 212]]

criteria, factors such as whether the applicant has been subject to a 
termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 27.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 28_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
28.100  Conditions on use of funds.
28.105  Definitions.
28.110  Certification and disclosure.

                  Subpart B_Activities by Own Employees

28.200  Agency and legislative liaison.
28.205  Professional and technical services.
28.210  Reporting.

            Subpart C_Activities by Other Than Own Employees

28.300  Professional and technical services.

                   Subpart D_Penalties and Enforcement

28.400  Penalties.
28.405  Penalty procedures.
28.410  Enforcement.

                          Subpart E_Exemptions

28.500  Secretary of Defense.

                        Subpart F_Agency Reports

28.600  Semi-annual compilation.
28.605  Inspector General report.

Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352; 5 U.S.C. 301; 
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: 55 FR 6737, 6748, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                            Subpart A_General



Sec. 28.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in Appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in Appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in Appendix A, whether that 
person has

[[Page 213]]

made or has agreed to make any payment to influence or attempt to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in Appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 28.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,

[[Page 214]]

    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 28.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or

[[Page 215]]

    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 28.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 28.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement if the payment 
is for agency and legislative liaison activities not directly related to 
a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,

[[Page 216]]

    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 28.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in 
Sec. 28.100(a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 28.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 28.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 28.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.

[[Page 217]]

    (b) The reporting requirements in Sec. 28.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 28.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure made on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
expenditure made after October 23, 1996.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B of this part) to be filed or amended if required herein, 
shall be subject to a civil penalty of not less than $10,000 and not 
more than $100,000 for each such failure occurring on or before October 
23, 1996, and of not less than $11,000 and not more than $110,000 for 
each such failure occurring after October 23, 1996.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.

[[Page 218]]

    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances for each such offense committed on or before October 23, 
1996, and $11,000 for each such offense committed after October 23, 
1996. Second and subsequent offenses by persons shall be subject to an 
appropriate civil penalty between $10,000 and $100,000 for each such 
offense committed on or before October 23, 1996, and between $11,000 and 
$110,000 for each such offense committed after October 23, 1996, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]



Sec. 28.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 28.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 28.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 28.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see Appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no

[[Page 219]]

later than with the compilations due on May 31, 1991. OMB shall provide 
detailed specifications in a memorandum to these agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 28.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.



      Sec. Appendix A to Part 28--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure occurring on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
failure occurring after October 23, 1996.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure occurring

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on or before October 23, 1996, and of not less than $11,000 and not more 
than $110,000 for each such failure occurring after October 23, 1996.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]

[[Page 221]]

        Appendix B to Part 28--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC20SE91.001


[[Page 222]]


[GRAPHIC] [TIFF OMITTED] TC20SE91.002


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[GRAPHIC] [TIFF OMITTED] TC20SE91.003

                           PART 29 [RESERVED]

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     Subtitle B--Regulations Relating to Commerce and Foreign Trade

[[Page 227]]



         CHAPTER I--BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
30              Foreign trade regulations...................         229
40              Training of foreign participants in census 
                    procedures and general statistics.......         286
50              Special services and studies by the Bureau 
                    of the Census...........................         288
60              Public information..........................         293
70              Cutoff dates for recognition of boundary 
                    changes for the 2010 Census.............         293
80              Furnishing personal census data from census 
                    of population schedules.................         294
90              Procedure for challenging population 
                    estimates...............................         295
100             Seal........................................         297
101             Release of decennial census population 
                    information.............................         298
102-199         [Reserved]

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PART 30_FOREIGN TRADE REGULATIONS--Table of Contents



                     Subpart A_General Requirements

Sec.
30.1  Purpose and definitions.
30.2  General requirements for filing Electronic Export Information 
          (EEI).
30.3  Electronic Export Information filer requirements, parties to 
          export transactions, and responsibilities of parties to export 
          transactions.
30.4  Electronic Export Information filing procedures, deadlines, and 
          certification statements.
30.5  Electronic Export Information filing application and certification 
          processes and standards.
30.6  Electronic Export Information data elements.
30.7  Annotating the bill of lading, air waybill, or other commercial 
          loading documents with the proof of filing citations, and 
          exemption legends.
30.8  Time and place for presenting proof of filing citations and 
          exemption legends.
30.9  Transmitting and correcting Electronic Export Information.
30.10  Retention of export information and authority to require 
          production of documents.
30.11-30.14  [Reserved]

           Subpart B_Export Control and Licensing Requirements

30.15  Introduction.
30.16  Export Administration Regulations.
30.17  Customs and Border Protection regulations.
30.18  Department of State regulations.
30.19  Other Federal agency regulations.
30.20-30.24  [Reserved]

       Subpart C_Special Provisions and Specific-Type Transactions

30.25  Values for certain types of transactions.
30.26  Reporting of vessels, aircraft, cargo vans, and other carriers 
          and containers.
30.27  Return of exported cargo to the United States prior to reaching 
          its final destination.
30.28  Split shipments.
30.29  Reporting of repairs and replacements.
30.30-30.34  [Reserved]

Subpart D_Exemptions From the Requirements for the Filing of Electronic 
                           Export Information

30.35  Procedure for shipments exempt from filing requirements.
30.36  Exemption for shipments destined to Canada.
30.37  Miscellaneous exemptions.
30.38  Exemption from the requirements for reporting complete commodity 
          information.
30.39  Special exemptions for shipments to the U.S. Armed Services.
30.40  Special exemptions for certain shipments to U.S. government 
          agencies and employees.
30.41-30.44  [Reserved]

           Subpart E_General Carrier and Manifest Requirements

30.45  General statement of requirements for the filing of carrier 
          manifests with proof of filing citations for the electronic 
          submission of export information or exemption legends when 
          Electronic Export Information filing is not required.
30.46  Requirements for the filing of export information by pipeline 
          carriers.
30.47  Clearance or departure of carriers under bond on incomplete 
          manifests.
30.48-30.49  [Reserved]

                      Subpart F_Import Requirements

30.50  General requirements for filing import entries.
30.51  Statistical information required for import entries.
30.52  Foreign Trade Zones.
30.53  Import of goods returned for repair.
30.54  Special provisions for imports from Canada.
30.55  Confidential information, import entries, and withdrawals.
30.56-30.59  [Reserved]

               Subpart G_General Administrative Provisions

30.60  Confidentiality of Electronic Export Information.
30.61  Statistical classification schedules.
30.62  Emergency exceptions.
30.63  Office of Management and Budget control numbers assigned pursuant 
          to the Paperwork Reduction Act.
30.64-30.69  [Reserved]

                           Subpart H_Penalties

30.70  Violation of the Clean Diamond Trade Act.
30.71  False or fraudulent reporting on or misuse of the Automated 
          Export System.
30.72  Civil penalty procedures.
30.73  Enforcement.
30.74  Voluntary self-disclosure.
30.75-30.99  [Reserved]

Appendix A To Part 30--Sample for Power of Attorney and Written 
          Authorization
Appendix B To Part 30--AES Filing Codes

[[Page 230]]

Appendix C To Part 30--Summary of Exemptions and Exclusions From EEI 
          Filing
Appendix D To Part 30--AES Filing Citation and Exemption Legends
Appendix E To Part 30--FTSR to FTR Concordance
Appendix F To Part 30--FTR to FTSR Concordance

    Authority: 5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization plan No. 
5 of 1990 (3 CFR 1949-1953 Comp., p.1004); Department of Commerce 
Organization Order No. 35-2A, July 22, 1987, as amended and No. 35-2B, 
December 20, 1996, as amended; Public Law 107-228, 116 Stat. 1350.

    Source: 73 FR 31555, June 2, 2008, unless otherwise noted.



                     Subpart A_General Requirements



Sec. 30.1  Purpose and definitions.

    (a) This part sets forth the Foreign Trade Regulations (FTR) as 
required under the provisions of Title 13, United States Code (U.S.C.), 
Chapter 9, section 301. These regulations are revised pursuant to 
provisions of the Foreign Relations Authorization Act, Public Law 107-
228 (the Act). This Act authorizes the Secretary of Commerce, with the 
concurrence of the Secretary of State and the Secretary of Homeland 
Security, to publish regulations mandating that all persons who are 
required to file export information under Chapter 9 of 13 U.S.C., file 
such information through the Automated Export System (AES) for all 
shipments where a Shipper's Export Declaration (SED) was previously 
required. The law further authorizes the Secretary of Commerce to issue 
regulations regarding imposition of civil and criminal penalties for 
violations of the provisions of the Act and these regulations.
    (b) Electronic filing through the AES strengthens the U.S. 
government's ability to prevent the export of certain items to 
unauthorized destinations and/or end users because the AES aids in 
targeting, identifying, and when necessary confiscating suspicious or 
illegal shipments prior to exportation.
    (c) Definitions used in the FTR. As used in this part, the following 
definitions apply:
    AES applicant. The USPPI or authorized agent who applies to the 
Census Bureau for authorization to report export information 
electronically to the AES, or through AESDirect or its related 
applications.
    AESDirect. A free Internet application supported by the Census 
Bureau that allows USPPIs, their authorized agent, or the authorized 
agent of the FPPI to transmit EEI through the AES via the Internet at 
http://www.aesdirect.gov.
    AES downtime filing citation. A statement used in place of a proof 
of filing citation when the AES or AES Direct computer systems 
experience a major failure. The citation must appear on the bill of 
lading, air waybill, export shipping instructions, or other commercial 
loading documents. The downtime filing citation is not to be used when 
the filer's system is down or experiencing delays.
    AES participant application (APA). An electronic submission of an 
individual or a company's desire to participate in the AES. It sets 
forth a commitment to develop, maintain, and adhere to CBP and Census 
Bureau performance requirements and operational standards.
    Air waybill. The shipping document used for the transportation of 
air freight includes conditions, limitations of liability, shipping 
instructions, description of commodity, and applicable transportation 
charges. It is generally similar to a straight non-negotiable bill of 
lading and is used for similar purposes.
    Annotation. An explanatory note (e.g., proof of filing citation, 
postdeparture filing citation, AES downtime filing citation, exemption 
or exclusion legend) placed on the bill of lading, air waybill, export 
shipping instructions, or other commercial loading documents.
    Authorized agent. An individual or legal entity physically located 
in or otherwise under the jurisdiction of the United States that has 
obtained power of attorney or written authorization from a USPPI or FPPI 
to act on its behalf, and for purposes of this part, to complete and 
file the EEI.
    Automated Broker Interface (ABI). A CBP system through which an 
importer or licensed customs broker can electronically file entry and 
entry summary data on goods imported into the United States.

[[Page 231]]

    Automated Export System (AES). The system, including AESDirect, for 
collecting EEI information (or any successor document) from persons 
exporting goods from the United States, Puerto Rico, or the U.S. Virgin 
Islands; between Puerto Rico and the United States; and to the U.S. 
Virgin Islands from the United States or Puerto Rico.
    Automated Export System Trade Interface Requirements (AESTIR). The 
document that describes the technical and operational requirements of 
the AES. The AESTIR presents record formats and other reference 
information used in the AES.
    Bill of lading (BL). A document that establishes the terms of a 
contract between a shipper and a transportation company under which 
freight is to be moved between specified points for a specified charge. 
Usually prepared by the authorized agent on forms issued by the carrier, 
it serves as a document of title, a contract of carriage, and a receipt 
for goods.
    Bond. An instrument used by CBP as security to ensure the payment of 
duties, taxes and fees and/or compliance with certain requirements such 
as the submission of manifest information.
    Bonded warehouse. An approved private warehouse used for the storage 
of goods until duties or taxes are paid and the goods are properly 
released by CBP. Bonds must be posted by the warehouse proprietor and by 
the importer to indemnify the government if the goods are released 
improperly.
    Booking. A reservation made with a carrier for a shipment of goods 
on a specific voyage, flight, truck or train.
    Bureau of Industry and Security (BIS). This bureau within the U.S. 
Department of Commerce is concerned with the advancement of U.S. 
national security, foreign policy, and economic interests. The BIS is 
responsible for regulating the export of sensitive goods and 
technologies; enforcing export control, antiboycott, and public safety 
laws; cooperating with and assisting other countries on export control 
and strategic trade issues; and assisting U.S. industry to comply with 
international arms control agreements.
    Buyer. The principal in the export transaction that purchases the 
commodities for delivery to the ultimate consignee. The buyer and 
ultimate consignee may be the same.
    Cargo. Goods being transported.
    Carnet. An international customs document that allows the carnet 
holder to import into the United States or export to foreign countries 
certain goods on a temporary basis without the payment of duties.
    Carrier. An individual or legal entity in the business of 
transporting passengers or goods. Airlines, trucking companies, railroad 
companies, shipping lines, pipeline companies, and slot charterers are 
all examples of carriers.
    Civil penalty. A monetary penalty imposed on a USPPI, authorized 
agent, FPPI, carrier, or other party to the transaction for violating 
the FTR, including failing to file export information, filing false or 
misleading information, filing information late, and/or using the AES to 
further any illegal activity, and/or violating any other regulations of 
this part.
    Commerce Control List (CCL). A list of items found in Supplement No. 
1 to Part 774 of the EAR. Supplement No. 2 to Part 774 of the EAR 
contains the General Technology and Software Notes relevant to entries 
contained in the CCL.
    Commercial loading document. A document that establishes the terms 
of a contract between a shipper and a transportation company under which 
freight is to be moved between points for a specific charge. It is 
usually prepared by the shipper or the shipper's agent or the carrier 
and serves as a contract of carriage. Examples of commercial loading 
documents include the air waybill, ocean bill of lading, truck bill and 
rail bill of lading.
    Compliance alert. An electronic response sent to the filer by the 
AES when the shipment was not reported in accordance with this part 
(e.g., late filing). The filer is required to review their filing 
practices and take steps to conform with export reporting requirements.
    Consignee. The person or entity named in a freight contract, a 
contract of carriage that designates to whom goods have been consigned, 
and that has the legal right to claim the goods at the destination.

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    Consignment. Delivery of goods from a USPPI (the consignor) to an 
agent (consignee) under agreement that the agent sells the goods for the 
account of the USPPI.
    Container. A uniform, reusable metal ``box'' in which goods are 
shipped by vessel, truck, or rail as defined in the International 
Convention for Safe Containers, as amended (TIAS 9037; 29 U.S.T. 3709).
    Controlling agency. The agency responsible for the license 
determination on specified goods exported from the United States.
    Cost of goods sold. Cost of goods is the sum of expenses incurred in 
the USPPI acquisition or production of the goods.
    Country of origin. The country where the goods were mined, grown, or 
manufactured or where each foreign material used or incorporated in a 
good underwent a change in tariff classification indicating a 
substantial transformation under the applicable rule of origin for the 
good. The country of origin for U.S. imports are reported in terms of 
the International Standards Organization (ISO) codes designated in the 
Schedule C, Classification of Country and Territory Designations.
    Country of ultimate destination. The country where the goods are to 
be consumed, further processed, stored, or manufactured, as known to the 
USPPI at the time of export. (See Sec. 30.6(a)(5).
    Criminal penalty. For the purpose of this part, a penalty imposed 
for knowingly or willfully violating the FTR, including failing to file 
export information, filing false or misleading information, filing 
information late, and/or using the AES to further illegal activity. The 
criminal penalty includes fines, imprisonment, and/or forfeiture.
    Customs broker. An individual or entity licensed to enter and clear 
imported goods through CBP for another individual or entity.
    Destination. The foreign location to which a shipment is consigned.
    Diplomatic pouch. Any properly identified and sealed pouch, package, 
envelope, bag, or other container that is used to transport official 
correspondence, documents, and articles intended for official use, 
between embassies, legations, or consulates, and the foreign office of 
any government.
    Distributor. An agent who sells directly for a supplier and 
maintains an inventory of the supplier's products.
    Domestic exports. Goods that are grown, produced, or manufactured in 
the United States, and commodities of foreign origin that have been 
changed in the United States, including changes made in a U.S. FTZ, from 
the form in which they were imported, or that have been enhanced in 
value or improved in condition by further processing or manufacturing in 
the United States.
    Drayage. The charge made for hauling freight, carts, drays, or 
trucks.
    Dun & Bradstreet Number (DUNS). The DUNS Number is a unique 9-digit 
identification sequence that provides identifiers to single business 
entities while linking corporate family structures together.
    Dunnage. Materials placed around cargo to prevent shifting or damage 
while in transit.
    Duty. A charge imposed on the import of goods. Duties are generally 
based on the value of the goods (ad valorem duties), some other factor, 
such as weight or quantity (specific duties), or a combination of value 
and other factors (compound duties).
    Electronic CBP Form 214 Admissions (e214). An automated CBP 
mechanism that allows importers, brokers, and zone operators to report 
FTZ admission information electronically via the CBP's Automated Broker 
Interface. The e214 is the electronic mechanism that replaced the Census 
Bureau's Automated Foreign Trade Zone Reporting Program (AFTZRP).
    Electronic export information (EEI). The electronic export data as 
filed in the AES. This is the electronic equivalent of the export data 
formerly collected as Shipper's Export Declaration (SED) information and 
now mandated to be filed through the AES or AESDirect.
    Employer identification number (EIN). The USPPI's Internal Revenue 
Service (IRS) EIN is the 9-digit numerical code as reported on the 
Employer's Quarterly Federal Tax Return, Treasury Form 941.
    End user. The person abroad that receives and ultimately uses the 
exported or reexported items. The end user is

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not an authorized agent or intermediary, but may be the FPPI or ultimate 
consignee.
    Enhancement. A change or modification to goods that increases their 
value or improves their condition.
    Entry number. Consists of a three-position entry filer code and a 
seven-position transaction code, plus a check digit assigned by the 
entry filer as a tracking number for goods entered into the United 
States.
    Equipment number. The identification number for shipping equipment, 
such as container or igloo (Unit Load Device (ULD)) number, truck 
license number, or rail car number.
    Exclusions. Transactions outside of the scope of the FTR that are 
excluded from the requirement of filing EEI.
    Exemption. A specific reason as cited within this part that 
eliminates the requirement for filing EEI.
    Exemption legend. A notation placed on the bill of lading, air 
waybill, export shipping instructions, or other commercial loading 
document that describes the basis for not filing EEI for an export 
transaction. The exemption legend shall reference the number of the 
section or provision in the FTR where the particular exemption is 
provided (See Appendix D to this part).
    Export. To send or transport goods out of a country.
    Export Administration Regulations (EAR). Regulations administered by 
the BIS that, among other things, provide specific instructions on the 
use and types of export licenses required for certain commodities, 
software, and technology. These regulations are located in 15 CFR parts 
730 through 774.
    Export control. Governmental control of exports for statistical or 
strategic and short supply or national security purposes, and/or for 
foreign policy purposes.
    Export Control Classification Number (ECCN). The number used to 
identify items on the CCL, Supplement No. 1 to Part 774 of the EAR. The 
ECCN consists of a set of digits and a letter. Items that are not 
classified under an ECCN are designated ``EAR99.'' Section 738.2 of the 
EAR describes the ECCN format.
    Export license. A controlling agency's document authorizing export 
of particular goods in specific quantities or values to a particular 
destination. Issuing agencies include, but are not limited to, the U.S. 
State Department; the BIS; the Bureau of Alcohol, Tobacco, and Firearms; 
and the Drug Enforcement Administration permit to export.
    Export statistics. The measure of quantity and value of goods 
(except for shipments to U.S. military forces overseas) moving out of 
the United States to foreign countries, whether such goods are exported 
from within the Customs territory of the United States, a CBP bonded 
warehouse, or a U.S. Foreign Trade Zone (FTZ).
    Fatal error message. An electronic response sent to the filer by the 
AES when invalid or missing data has been encountered, the EEI has been 
rejected, and the information is not on file in the AES. The filer is 
required to immediately correct the problem, correct the data, and 
retransmit the EEI.
    Filers. Those USPPIs or authorized agents (of either the USPPI or 
the FPPI) who have been approved to file EEI directly in the AES or 
AESDirect Internet application.
    Filer ID. The Employer Identification Number or Dun & Bradstreet 
Number of the company or individual filing the export information in the 
Automated Export System.
    Filing electronic export information. The act of entering the EEI in 
the AES.
    Foreign entity. A person that temporarily enters into the United 
States and purchases or obtains goods for export. This person does not 
physically maintain an office or residence in the United States. This is 
a special class of USPPI.
    Foreign exports. Commodities of foreign origin that have previously 
been admitted to a U.S. FTZ or entered the United States for 
consumption, including entry into a CBP bonded warehouse, and which, at 
the time of exportation, are in substantially the same condition as when 
imported.
    Foreign port of unlading. The port in a foreign country where the 
goods are removed from the exporting carrier. The foreign port does not 
have to be located in the country of destination. The foreign port of 
unlading shall be reported

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in terms of the Schedule K, ``Classification of CBP Foreign Ports by 
Geographic Trade Area and Country.''
    Foreign Principal Party in Interest (FPPI). The party abroad who 
purchases the goods for export or to whom final delivery or end-use of 
the goods will be made. This party may be the Ultimate Consignee.
    Foreign Trade Zone (FTZ). Specially licensed commercial and 
industrial areas in or near ports of entry where foreign and domestic 
goods, including raw materials, components, and finished goods, may be 
brought in without being subject to payment of customs duties. Goods 
brought into these zones may be stored, sold, exhibited, repacked, 
assembled, sorted, graded, cleaned, manufactured, or otherwise 
manipulated prior to reexport or entry into the country's customs 
territory.
    Forwarding agent. The person in the United States who is authorized 
by the principal party in interest to facilitate the movement of the 
cargo from the United States to the foreign destination and/or prepare 
and file the required documentation.
    Goods. Merchandise, supplies, raw materials, and products or any 
other item identified by a Harmonized Tariff System (HTS) code.
    Harmonized system. A method of classifying goods for international 
trade developed by the Customs Cooperation Council (now the World 
Customs Organization).
    Harmonized Tariff Schedule of the United States Annotated (HTSUSA). 
An organized listing of goods and their duty rates, developed by the 
U.S. International Trade Commission, as the basis for classifying 
imported products.
    Household goods. Usual and reasonable kinds and quantities of 
personal property necessary and appropriate for use by the USPPI in the 
USPPI's dwelling in a foreign country that are shipped under a bill of 
lading or an air waybill and are not intended for sale.
    Imports. All goods physically brought into the United States, 
including:
    (1) Goods of foreign origin, and
    (2) Goods of domestic origin returned to the United States without 
substantial transformation affecting a change in tariff classification 
under an applicable rule of origin.
    Inbond. A procedure administered by CBP under which goods are 
transported or warehoused under CBP supervision until the goods are 
either formally entered into the customs territory of the United States 
and duties are paid, or until they are exported from the United States. 
The procedure is so named because the cargo moves under a bond 
(financial liability assured by the principal on the bond) from the 
gateway seaport, airport, or land border port and remains ``inbond'' 
until CBP releases the cargo at the inland Customs point or at the port 
of export.
    Inland freight. The cost to ship goods between points inland and the 
seaport, airport, or land border port of exportation, other than 
baggage, express mail, or regular mail.
    Intermediate consignee. The person or entity in the foreign country 
who acts as an agent for the principal party in interest with the 
purpose of effecting delivery of items to the ultimate consignee. The 
intermediate consignee may be a bank, forwarding agent, or other person 
who acts as an agent for a principal party in interest.
    Internal Transaction Number (ITN). The AES generated number assigned 
to a shipment confirming that an EEI transaction was accepted and is on 
file in the AES.
    International Standards Organization (ISO) Country Codes. The 2-
position alphabetic ISO code for countries used to identify countries 
for which shipments are reportable.
    International Traffic in Arms Regulations (ITAR). Regulations 
administered by the Directorate of Defense Trade Controls within the 
U.S. State Department that provide for the control of the export and 
temporary import of defense articles and defense services. These 
regulations are located in 22 CFR 120-130.
    International waters. Waters located outside the U.S. territorial 
sea, which extends 12 nautical miles measured from the baselines of the 
United States, and outside the territory of any foreign country, 
including the territorial waters thereof. Note that vessels, platforms, 
buoys, undersea systems, and other similar structures that are located 
in international waters, but

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are attached permanently or temporarily to a country's continental 
shelf, are considered to be within the territory of that country.
    Interplant correspondence. Records or documents from a U.S. firm to 
its subsidiary or affiliate, whether in the United States or overseas.
    In-transit. Goods shipped through the United States, Puerto Rico, or 
the U.S. Virgin Islands from one foreign country or area to another 
foreign country or area without entering the consumption channels of the 
United States.
    Issued banknote. A promissory note intended to circulate as money, 
usually printed on paper or plastic, issued by a bank with a specific 
denomination, payable to an individual, entity or the bearer.
    License applicant. The person who applies for an export or reexport 
license. (For example, obtaining a license for commodities, software, or 
technology that are listed on the CCL.)
    License exception. An authorization that allows a USPPI or other 
appropriate party to export or reexport under stated conditions, items 
subject to the EAR that would otherwise require a license under the EAR. 
The BIS License Exceptions are currently contained in Part 740 of the 
EAR (15 CFR part 740).
    Manifest. A collection of documents, including forms, such as the 
cargo declaration and annotated bills of lading, that lists and 
describes the cargo contents of a carrier, container, or warehouse. 
Carriers required to file manifests with CBP Port Director must include 
an AES filing citation, or exemption or exclusion legend for all cargo 
being transported.
    Mass-market software. Software that is produced in large numbers and 
made available to the public. It does not include software that is 
customized for a specific user.
    Merchandise. Goods, wares, and chattels of every description, and 
includes merchandise the exportation of which is prohibited, and 
monetary instruments as defined in 31 U.S.C. 5312.
    Method of transportation. The method by which goods are exported 
from the United States by way of seaports, airports, or land border 
crossing points. Methods of transportation include vessel, air, truck, 
rail, mail or other. Method of transportation is synonymous with mode of 
transportation.
    Non-Vessel Operating Common Carrier (NVOCC). A freight forwarder 
that acts as common carrier but does not operate the vessels by which 
ocean transportation is provided, and is a shipper in relation to the 
involved ocean common carrier.
    North American Free Trade Agreement (NAFTA). The formal agreement, 
or treaty, among Canada, Mexico, and the United States to promote trade 
amongst the three countries. It includes measures for the elimination of 
tariffs and nontariff barriers to trade, as well as numerous specific 
provisions concerning the conduct of trade and investment.
    Office of Foreign Assets Control (OFAC). An agency within the U.S. 
Department of the Treasury that administers and enforces economic and 
trade sanctions based on U.S. foreign policy and national security goals 
against targeted foreign countries, terrorists, international narcotics 
traffickers, and those engaged in activities related to the 
proliferation of weapons of mass destruction. The OFAC acts under 
Presidential wartime and national emergency powers, as well as authority 
granted by specific legislation, to impose controls on transactions and 
freeze foreign assets under U.S. jurisdiction.
    Order party. The person in the United States that conducts the 
direct negotiations or correspondence with the foreign purchaser or 
ultimate consignee and who, as a result of these negotiations, receives 
the order from the FPPI. If a U.S. order party directly arranges for the 
sale and export of goods to the FPPI, the U.S. order party shall be 
listed as the USPPI in the EEI.
    Packing list. A list showing the number and kinds of items being 
shipped, as well as other information needed for transportation 
purposes.
    Partnership agencies. U.S. government agencies that have statistical 
and analytical reporting and/or monitoring and enforcement 
responsibilities related to AES postdeparture filing privileges.
    Party ID type. Identifies whether the Party ID is an EIN, DUNS, or 
Foreign

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Entity reported to the AES, for example, E = EIN, D = DUNS, T = Foreign 
Entity.
    Person. Any natural person, corporation partnership or other legal 
entity of any kind, domestic or foreign.
    Port of export. The port of export is the U.S. Customs and Border 
Protection (CBP) seaport or airport where the goods are loaded on the 
aircraft or vessel that is taking the goods out of the United States, or 
the CBP port where exports by overland transportation cross the U.S. 
border into Canada or Mexico. For EEI reporting purposes only, for goods 
loaded aboard an aircraft or vessel that stops at several ports before 
clearing to the foreign country, the port of export is the first CBP 
port where the goods were loaded. For goods off-loaded from the original 
conveyance to another conveyance (even if the aircraft or vessel belongs 
to the same carrier) at any of the ports, the port where the goods were 
loaded on the last conveyance before going foreign is the port of 
export. The port of export is reported in terms of Schedule D, 
``Classification of CBP Districts and Ports.'' Use port code 8000 for 
shipments by mail.
    Postdeparture filing. The privilege granted to approved USPPIs for 
their EEI to be filed up to five (5) calendar days after the date of 
export.
    Postdeparture filing citation. A notation placed on the bill of 
lading, air waybill, export shipping instructions, or other commercial 
loading documents that states that the EEI will be filed after departure 
of the carrier. (See Appendix D of this part.)
    Power of attorney. A legal authorization, in writing, from a USPPI 
or FPPI stating that an agent has authority to act as the principal 
party's true and lawful agent for purposes of preparing and filing the 
EEI in accordance with the laws and regulations of the United States. 
(See Appendix A of this part.)
    Primary benefit. Receiving the majority payment or exchange of item 
of value or other legal consideration resulting from an export trade 
transaction; usually monetary.
    Principal parties in interest. Those persons in a transaction that 
receive the primary benefit, monetary or otherwise, from the 
transaction. Generally, the principals in a transaction are the seller 
and the buyer. In most cases, the forwarding or other agent is not a 
principal party in interest.
    Proof of filing citation. A notation placed on the bill of lading, 
air waybill, export shipping instructions, or other commercial loading 
document, usually for carrier use, that provides evidence that the EEI 
has been filed and accepted in the AES.
    Reexport. For statistical purposes: These are exports of foreign-
origin goods that have previously entered the United States, Puerto 
Rico, or the U.S. Virgin Islands for consumption, entry into a CBP 
bonded warehouse, or a U.S. FTZ, and at the time of exportation, have 
undergone no change in form or condition or enhancement in value by 
further manufacturing in the United States, Puerto Rico, the U.S. Virgin 
Islands, or U.S. FTZs. For the purpose of goods subject to export 
controls (e.g., U.S. Munitions List (USML) articles) these are shipments 
of U.S.-origin products from one foreign destination to another.
    Related party transaction. A transaction involving trade between a 
USPPI and an ultimate consignee where either party owns directly or 
indirectly 10 percent or more of the other party.
    Remission. The cancellation or release from a penalty, including 
fines, and/or forfeiture, under this part.
    Retention. The necessary act of keeping all documentation pertaining 
to an export transaction for a period of at least five years for an EEI 
filing, or a time frame designated by the controlling agency for 
licensed shipments, whichever is longer.
    Routed export transaction. A transaction in which the FPPI 
authorizes a U.S. agent to facilitate export of items from the United 
States on its behalf and prepare and file the EEI.
    Schedule B. The Statistical Classification of Domestic and Foreign 
Commodities Exported from the United States. These 10-digit commodity 
classification numbers are administered by the Census Bureau and cover 
everything from live animals and food products to computers and 
airplanes. It should also be noted that all import and export codes used 
by the United

[[Page 237]]

States are based on the Harmonized Tariff System.
    Schedule C. The Classification of Country and Territory 
Designations. The Schedule C provides a list of country of origin codes. 
The country of origin is reported in terms of the International 
Standards Organization codes.
    Schedule D. The Classification of CBP districts and ports. The 
Schedule D provides a list of CBP districts and ports and the 
corresponding numeric codes used in compiling U.S. foreign trade 
statistics.
    Schedule K. The Classification of Foreign Ports by Geographic Trade 
Area and Country. The Schedule K lists the major seaports of the world 
that directly handle waterborne shipments in the foreign trade of the 
United States, and includes numeric codes to identify these ports. This 
schedule is maintained by the U.S. Army Corps of Engineers.
    Seller. A principal in the transaction, usually the manufacturer, 
producer, wholesaler, or distributor of the goods, that receives the 
monetary benefit or other consideration for the exported goods.
    Service center. A company, entity, or organization which has been 
certified and approved to only transmit complete EEI to the AES.
    Shipment. All goods being sent from one USPPI to one consignee 
located in a single country of destination on a single conveyance and on 
the same day. Except as noted in Sec. 30.2(a)(1)(iv), the EEI shall be 
filed when the value of the goods is over $2,500 per Schedule B or 
HTSUSA commodity classification code.
    Shipment reference number. A unique identification number assigned 
to the shipment by the filer for reference purposes. The reuse of the 
shipment reference number is prohibited.
    Shipper's Export Declaration (SED). The Department of Commerce paper 
form used under the Foreign Trade Statistics Regulations to collect 
information from an entity exporting from the United States. This form 
was used for compiling the official U.S. export statistics for the 
United States and for export control purposes. The SED became obsolete 
on October 1, 2008, with the implementation of the Foreign Trade 
Regulations (FTR) and has been superseded by the EEI filed in the AES or 
through the AESDirect.
    Shipping documents. Documents that include but are not limited to 
commercial invoices, export shipping instructions, packing lists, bill 
of ladings and air waybills.
    Shipping weight. The total weight of a shipment in kilograms 
including goods and packaging.
    Split shipment. A shipment booked for export that is divided by the 
carrier in two or more shipments by the same mode of transportation from 
the same port within 24 hours.
    Subzone. A special purpose foreign trade zone established as part of 
a foreign trade zone project with a limited purpose that cannot be 
accommodated within an existing zone. Subzones are often established to 
serve the needs of a specific company and may be located within an 
existing facility of the company.
    Tariff schedule. A comprehensive list or schedule of goods with 
applicable duty rates to be paid or charged for each listed article as 
it enters or leaves a country.
    Transmitting electronic export information. The act of sending the 
completed EEI to the AES.
    Transportation reference number. A reservation number assigned by 
the carrier to hold space on the carrier for cargo being shipped. It is 
the booking number for vessel shipments and the master air waybill 
number for air shipments, the bill of lading number for rail shipments, 
and the freight or pro bill for truck shipments.
    Transshipment. The transfer of merchandise from the country or 
countries of origin through an intermediary country or countries to the 
country of ultimate destination.
    Ultimate consignee. The person, party, or designee that is located 
abroad and actually receives the export shipment. This party may be the 
end user or the FPPI.
    United States Munitions List (USML). Articles and services 
designated for defense purposes under the ITAR and specified in 22 CFR 
121.
    Unlading. The physical removal of cargo from an aircraft, truck, 
rail, or vessel.

[[Page 238]]

    U.S. Customs and Border Protection (CBP). The border agency within 
the Department of Homeland Security (DHS) charged with the management, 
control, and protection of our Nation's borders at and between the 
official ports of entry of the United States.
    U.S. Immigration and Customs Enforcement (ICE). An agency within the 
DHS that is responsible for enforcing customs, immigration and related 
laws and investigating violations of laws to secure the Nation's 
borders.
    U.S. principal party in interest (USPPI). The person or legal entity 
in the United States that receives the primary benefit, monetary or 
otherwise, from the export transaction. Generally, that person or entity 
is the U.S. seller, manufacturer, or order party, or the foreign entity 
while in the United States when purchasing or obtaining the goods for 
export.
    Value. The selling price (or the cost if the goods are not sold) in 
U.S. dollars, plus inland or domestic freight, insurance, and other 
charges to the U.S. seaport, airport, or land border port of export. 
Cost of goods is the sum of expenses incurred in the USPPI's acquisition 
or production of the goods. (See Sec. 30.6(a)(17)).
    Vehicle Identification Number (VIN). A number issued by the 
manufacturer and used for the identification of a self-propelled 
vehicle.
    Verify message. An electronic response sent to the filer by the AES 
when an unlikely condition is found.
    Violation of the FTR. Failure of the USPPI, FPPI, authorized agent 
of the USPPI, FPPI, carrier, or other party to the transaction to comply 
with the requirements set forth in 15 CFR 30, for each export shipment.
    Voluntary Self-Disclosure (VSD). A narrative account with supporting 
documentation that sufficiently describes suspected violations of the 
FTR. A VSD reflects due diligence in detecting, and correcting potential 
violation(s) when required information was not reported or when 
incorrect information was provided that violates the FTR.
    Warning message. An electronic response sent to the filer by the AES 
when certain incomplete and conflicting data reporting conditions are 
encountered.
    Wholesaler/distributor. An agent who sells directly for a supplier 
and maintains an inventory of the supplier's products.
    Written authorization. An authorization, in writing, by the USPPI or 
FPPI stating that the agent has authority to act as the USPPI's or 
FPPI's true and lawful agent for purposes of preparing and filing the 
EEI in accordance with the laws and regulations of the United States. 
(See Appendix A of this part.)
    Zone admission number. A unique and sequential number assigned by a 
FTZ operator or user for shipments admitted to a zone.

[73 FR 31555, June 2, 2008, as amended at 74 FR 38916, Aug. 5, 2009; 78 
FR 16373, Mar. 14, 2013]

    Editorial Note: At 78 FR 16373, Mar. 14, 2013, in Sec. 30.1, the 
term ``Kimberly Process Certificate (KPC)'' was added to the 
definitions; however, the amendment could not be incorporated because of 
the inaccurate amendatory instruction.



Sec. 30.2  General requirements for filing Electronic Export 
Information (EEI).

    (a) Filing requirements--(1) The EEI shall be filed through the AES 
by the United States Principal Party In Interest (USPPI), the USPPI's 
authorized agent, or the authorized U.S. agent of the Foreign Principal 
Party In Interest (FPPI) for all exports of physical goods, including 
shipments moving pursuant to orders received over the Internet. The 
Automated Export System (AES) is the electronic system for collecting 
Shipper's Export Declaration (SED) (or any successor document) 
information from persons exporting goods from the United States, Puerto 
Rico, Foreign Trade Zones (FTZs) located in the United States or Puerto 
Rico, the U.S. Virgin Islands, between Puerto Rico and the United 
States, and to the U.S. Virgin Islands from the United States or Puerto 
Rico. Exceptions, exclusions, and exemptions to this requirement are 
provided for in paragraph (d) of this section and Subpart D of this 
part. References to the AES also shall apply to AESDirect unless 
otherwise specified. For purposes of the regulations in this part, the 
SED

[[Page 239]]

information shall be referred to as EEI. Filing through the AES shall be 
done in accordance with the definitions, specifications, and 
requirements of the regulations in this part for all export shipments, 
except as specifically excluded in Sec. 30.2(d) or exempted in Subpart D 
of this part, when shipped as follows:
    (i) To foreign countries or areas, including free (foreign trade) 
zones located therein (see Sec. 30.36 for exemptions for shipments from 
the United States to Canada) from any of the following:
    (A) The United States, including the 50 states and the District of 
Columbia.
    (B) Puerto Rico.
    (C) FTZs located in the United States or Puerto Rico.
    (D) The U.S. Virgin Islands.
    (ii) Between any of the following nonforeign areas including goods 
previously admitted to customs warehouses or FTZs and moving under a 
U.S. Customs and Border Protection (CBP) bond:
    (A) To Puerto Rico from the United States.
    (B) To the United States from Puerto Rico.
    (C) To the U.S. Virgin Islands from the United States or Puerto 
Rico.
    (iii) The EEI shall be filed for goods moving as described in 
paragraphs (a)(1)(i) and (ii) of this section by any mode of 
transportation. (Instructions for filing EEI for vessels, aircraft, 
railway cars, and other carriers when sold while outside the areas 
described in paragraphs (a)(1)(i) and (ii) are covered in Sec. 30.26.)
    (iv) Notwithstanding exemptions in Subpart D, EEI shall be filed for 
the following types of export shipments, regardless of value:
    (A) Requiring a Department of Commerce, Bureau of Industry and 
Security (BIS) license (15 CFR 730-774).
    (B) Requiring a Department of State, Directorate of Defense Trade 
Controls (DDTC) license under the International Traffic in Arms 
Regulations (ITAR) (22 CFR Parts 120 through 130).
    (C) Subject to the ITAR, but exempt from license requirements.
    (D) Requiring a Department of Justice, Drug Enforcement 
Administration (DEA) export permit (21 CFR 1312).
    (E) Requiring a general or specific export license issued by the 
U.S. Nuclear Regulatory Commission under 10 CFR part 110.
    (F) Requiring an export license issued by any other federal 
government agency.
    (G) Classified as rough diamonds under 6-digit HS subheadings 
7102.10, 7102.21, and 7102.31.
    (H) Used self-propelled vehicles as defined in 19 CFR 192.1 of U.S. 
Customs and Border Protection regulations, except as noted in CBP 
regulations.

    Note to paragraph (a)(1)(iv): For the filing requirement for exports 
destined for a country in Country Group E:1 as set forth in the 
Supplement No. 1 to 15 CFR part 740, see FTR Sec. 30.16.

    (2) Filing methods. The USPPI has four means for filing EEI: use 
AESDirect; develop AES software using the AESTIR (see ); purchase software 
developed by certified vendors using the AESTIR; or use an authorized 
agent. An FPPI can only use an authorized agent in a routed transaction.
    (b) General requirements--(1) The EEI shall be filed prior to 
exportation (see Sec. 30.4) unless the USPPI has been approved to submit 
export data on a postdeparture basis (see Sec. 30.5(c)). Shipments 
requiring a license or license exemption may be filed postdeparture only 
when the appropriate licensing agency has granted the USPPI 
authorization. See Subpart B of this part.
    (2) Specific data elements required for EEI filing are contained in 
Sec. 30.6.
    (3) The AES downtime procedures provide uniform instructions for 
processing export transactions when the government's AES or AESDirect is 
unavailable for transmission. (See Sec. 30.4(b)(1) and Sec. 30.4(b)(3).)
    (4) Instructions for particular types of transactions and exemptions 
from these requirements are found in Subparts C and D of this part.
    (5) The EEI is required to be filed in the AES prior to export for 
shipments by vessel going directly to the countries identified in U.S. 
Customs and Border Protection regulations 19 CFR 4.75(c) and by aircraft 
going directly or indirectly to those countries. (See U.S.

[[Page 240]]

Customs and Border Protection regulations 19 CFR 122.74(b)(2).)
    (c) Certification and filing requirements. Filers of EEI shall be 
required to meet application, certification, and filing requirements 
before being approved to submit EEI. Steps leading toward approval for 
the AES or the AESDirect filing include the following processes: (See 
Sec. 30.5 for specific application, certification, and filing standards 
applicable to AES and AESDirect submissions.)
    (1) Submission of an electronic AES Participant Application (APA) 
for AES filing or submission of an online registration for filing 
through http://www.census.gov/aes.
    (2) Successful completion of certification testing for AES or for 
AESDirect filing.
    (d) Exclusions from filing EEI. The following types of transactions 
are outside the scope of this part and shall be excluded from EEI 
filing.
    (1) Goods shipped under CBP bond through the United States, Puerto 
Rico, or the U.S. Virgin Islands from one foreign country or area to 
another where such goods do not enter the consumption channels of the 
United States.
    (2) Except Puerto Rico and the U.S. Virgin Islands, goods shipped 
from the U.S. territories and goods shipped between the United States 
and these territories do not require EEI filing. However, goods 
transiting U.S. territories to foreign destinations require EEI filing.
    (3) Electronic transmissions and intangible transfers. (See Subpart 
B of this part for export control requirements for these types of 
transactions.)
    (4) Goods shipped to Guantanamo Bay Naval Base in Cuba from the 
United States, Puerto Rico, or the U.S. Virgin Islands and from 
Guantanamo Bay Naval Base to the United States, Puerto Rico, or the U.S. 
Virgin Islands. (See Sec. 30.39 for filing requirements for shipments 
exported to the U.S. Armed Services.)
    (5) Goods licensed by a U.S. federal government agency where the 
country of ultimate destination is the United States or goods destined 
to international waters where the person(s) or entity assuming control 
of the item(s) is a citizen or permanent resident alien of the United 
States or a juridical entity organized under the laws of the United 
States or a jurisdiction within the United States.
    (e) Penalties. Failure of the USPPI, the authorized agent of either 
the USPPI or the FPPI, the exporting carrier, or any other person 
subject thereto to comply with any of the requirements of the 
regulations in this part renders such persons subject to the penalties 
provided for in Subpart H of this part.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16375, Mar. 14, 2013]



Sec. 30.3  Electronic Export Information filer requirements, parties 
to export transactions, and responsibilities of parties to export
transactions.

    (a) General requirements. The filer of EEI for export transactions 
is either the USPPI, or the U.S. authorized agent. All EEI submitted to 
the AES shall be complete, correct, and based on personal knowledge of 
the facts stated or on information furnished by the parties to the 
export transaction. The filer shall be physically located in the United 
States at the time of filing, have an EIN or DUNS and be certified to 
report in the AES. In the event that the filer does not have an EIN or 
DUNS, the filer must obtain an EIN from the Internal Revenue Service. 
The filer is responsible for the truth, accuracy, and completeness of 
the EEI, except insofar as that party can demonstrate that it reasonably 
relied on information furnished by other responsible persons 
participating in the transaction. All parties involved in export 
transactions, including U.S. authorized agents, should be aware that 
invoices and other commercial documents may not necessarily contain all 
the information needed to prepare the EEI. The parties shall ensure that 
all information needed for reporting to the AES, including correct 
export licensing information, is provided to the U.S. authorized agent 
for the purpose of correctly preparing the EEI.
    (b) Parties to the export transaction--(1) Principal parties in 
interest. Those persons in a transaction that receive the primary 
benefit, monetary or otherwise, are considered principal parties

[[Page 241]]

to the transaction. Generally, the principal parties in interest in a 
transaction are the seller and buyer. In most cases, the forwarding or 
other agent is not a principal party in interest.
    (2) USPPI. For purposes of filing EEI, the USPPI is the person or 
legal entity in the United States that receives the primary benefit, 
monetary or otherwise, from the transaction. Generally, that person or 
entity is the U.S. seller, manufacturer, order party, or foreign entity 
if in the United States at the time goods are purchased or obtained for 
export. The foreign entity shall be listed as the USPPI if it is in the 
United States when the items are purchased or obtained for export. The 
foreign entity shall then follow the provisions for filing the EEI 
specified in Secs. 30.3 and 30.6 pertaining to the USPPI.
    (i) If a U.S. manufacturer sells goods directly to an entity in a 
foreign area, the U.S. manufacturer shall be listed as the USPPI in the 
EEI.
    (ii) If a U.S. manufacturer sells goods, as a domestic sale, to a 
U.S. buyer (wholesaler/distributor) and that U.S. buyer sells the goods 
for export to a FPPI, the U.S. buyer (wholesaler/distributor) shall be 
listed as the USPPI in the EEI.
    (iii) If a U.S. order party directly arranges for the sale and 
export of goods to the FPPI, the U.S. order party shall be listed as the 
USPPI in the EEI.
    (iv) If a customs broker is listed as the importer of record when 
entering goods into the United States for immediate consumption or 
warehousing entry, the customs broker may be listed as the USPPI in the 
EEI if the goods are subsequently exported without change or 
enhancement.
    (v) If a foreign person is listed as the importer of record when 
entering goods into the United States for immediate consumption or 
warehousing entry, the customs broker who entered the goods, may be 
listed as the USPPI in the EEI if the goods are subsequently exported 
without change or enhancement.
    (3) Authorized agent. The agent shall be authorized by the USPPI or, 
in the case of a routed export transaction, the agent shall be 
authorized by the FPPI to prepare and file the EEI. In a routed export 
transaction, the authorized agent can be the ``exporter'' for export 
control purposes as defined in 15 CFR 772.1 of the U.S. Department of 
Commerce EAR. However, the authorized agent shall not be shown as the 
USPPI in the EEI unless the agent acts as a USPPI in the export 
transaction as defined in paragraphs (b)(2)(iii), (iv), and (v) of this 
section.
    (4) Carrier. A carrier is an individual or legal entity in the 
business of transporting passengers or goods. Airlines, trucking 
companies, railroad companies, shipping lines, and pipeline companies 
are all examples of carriers.
    (c) General responsibilities of parties in export transactions--(1) 
USPPI responsibilities. (i) The USPPI can prepare and file the EEI 
itself, or it can authorize an agent to prepare and file the EEI on its 
behalf. If the USPPI prepares the EEI itself, the USPPI is responsible 
for the accuracy and timely transmission of all the export information 
reported to the AES.
    (ii) When the USPPI authorizes an agent to file the EEI on its 
behalf, the USPPI is responsible for:
    (A) Providing the authorized agent with accurate and timely export 
information necessary to file the EEI.
    (B) Providing the authorized agent with a power of attorney or 
written authorization to file the EEI (see paragraph (f) of this section 
for written authorization requirements for agents).
    (C) Retaining documentation to support the information provided to 
the authorized agent for filing the EEI, as specified in Sec. 30.10.
    (2) Authorized agent responsibilities. The agent, when authorized by 
a USPPI to prepare and file the EEI for an export transaction, is 
responsible for performing the following activities:
    (i) Accurate preparation and timely filing of the EEI based on 
information received from the USPPI and other parties involved in the 
transaction.
    (ii) Obtaining a power of attorney or written authorization from the 
USPPI to file the EEI.
    (iii) Retaining documentation to support the information reported to 
the AES, as specified in Sec. 30.10.
    (iv) Upon request, providing the USPPI with a copy of the export 
information filed in a mutually agreed upon format.

[[Page 242]]

    (3) Carrier responsibilities. (i) The carrier must not load or move 
cargo unless the required documentation, from the USPPI or authorized 
agent, contains the required AES proof of filing, postdeparture, 
downtime, exclusion or exemption citations. This information must be 
cited on the first page of the bill of lading, air waybill, or other 
commercial loading documents.
    (ii) The carrier must annotate the AES proof of filing, 
postdeparture, downtime, exclusion or exemption citations on the 
carrier's outbound manifest when required.
    (iii) The carrier is responsible for presenting the required AES 
proof of filing, postdeparture, downtime, exclusion or exemption 
citations to the CBP Port Director at the port of export as stated in 
Subpart E of this part. Such presentation shall be without material 
change or amendment of the proof of filing, postdeparture, downtime, 
exclusion or exemption citation.
    (iv) The carrier shall notify the USPPI or the authorized agent of 
changes to the transportation data, and the USPPI or the authorized 
agent shall electronically transmit the corrections, cancellations, or 
amendments as soon as the corrections are known in accordance with 
Sec. 30.9. Manifest amendments must be made in accordance with CBP 
regulations.
    (v) Retain documents pertaining to the export shipment as specified 
in Sec. 30.10.
    (d) Filer responsibilities. Responsibilities of USPPIs and 
authorized agents filing EEI are as follows:
    (1) Filing complete and accurate information (see Sec. 30.4 for a 
delineation of filing responsibilities of USPPIs and authorized agents).
    (2) Filing information in a timely manner in accordance with the 
provisions and requirements contained in this part.
    (3) Responding to fatal errors, warning, verify and reminder 
messages, and compliance alerts generated by the AES in accordance with 
provisions and requirements contained in this part.
    (4) Providing the exporting carrier with the required proof of 
filing citations or exemption legends in accordance with provisions 
contained in this part.
    (5) Promptly filing corrections or cancellations to EEI in 
accordance with provisions contained in Sec. 30.9.
    (6) Retaining all necessary and proper documentation related to EEI 
transactions in accordance with provisions contained in this part (see 
Sec. 30.10 for specific requirements for retaining and producing 
documentation for export shipments).
    (e) Responsibilities of parties in a routed export transaction. The 
Census Bureau recognizes ``routed export transactions'' as a subset of 
export transactions. A routed export transaction is a transaction in 
which the FPPI authorizes a U.S. agent to facilitate the export of items 
from the United States and to prepare and file EEI.
    (1) USPPI responsibilities. In a routed export transaction, the FPPI 
may authorize or agree to allow the USPPI to prepare and file the EEI. 
If the FPPI agrees to allow the USPPI to file the EEI, the FPPI must 
provide a written authorization to the USPPI assuming the responsibility 
for filing. The USPPI may authorize an agent to file the EEI on its 
behalf. If the USPPI or its agent prepares and files the EEI, it shall 
retain documentation to support the EEI filed. If the FPPI agrees to 
allow the USPPI to file EEI, the filing of the export transaction shall 
be treated as a routed export transaction. If the FPPI authorizes an 
agent to prepare and file the EEI, the USPPI shall retain documentation 
to support the information provided to the agent for preparing the EEI 
as specified in Sec. 30.10 and provide the agent with the following 
information to assist in preparing the EEI:
    (i) Name and address of the USPPI.
    (ii) USPPI's EIN or DUNS
    (iii) State of origin (State).
    (iv) FTZ if applicable.
    (v) Commercial description of commodities.
    (vi) Origin of goods indicator: Domestic (D) or Foreign (F).
    (vii) Schedule B or HTSUSA, Classification Commodity Code.
    (viii) Quantities/units of measure.
    (ix) Value.
    (x) Export Control Classification Number (ECCN) or sufficient 
technical information to determine the ECCN.
    (xi) All licensing information necessary to file the EEI for 
commodities

[[Page 243]]

where the Department of State, the Department of Commerce, or other U.S. 
government agency issues a license for the commodities being exported, 
or the merchandise is being exported under a license exemption or 
license exception.
    (xii) Any information that it knows will affect the determination of 
license authorization (see Subpart B of this part for additional 
information on licensing requirements).

    Note to paragraph (e)(1) of this section: For items in paragraph (e) 
(1) (ix), (x),(xi) and (xii) of this section, where the FPPI has assumed 
responsibility for determining and obtaining license authority see 
requirements set forth in 15 CFR 758.3 of the EAR.

    (2) Authorized agent responsibilities. In a routed export 
transaction, if an authorized agent is preparing and filing the EEI on 
behalf of the FPPI, the authorized agent must obtain a power of attorney 
or written authorization from the FPPI and prepare and file the EEI 
based on information obtained from the USPPI or other parties involved 
in the transaction. The authorized agent shall be responsible for filing 
the EEI accurately and timely in accordance with the FTR. Upon request, 
the authorized agent will provide the USPPI with a copy of the power of 
attorney or written authorization from the FPPI. The authorized agent 
shall also retain documentation to support the EEI reported through the 
AES. The agents shall upon request, provide the USPPI with the data 
elements in paragraphs (e)(1)(i) through (xii) of this section as 
submitted through the AES. The authorized agent shall provide the 
following export information through the AES:
    (i) Date of export.
    (ii) Transportation Reference Number.
    (iii) Ultimate consignee.
    (iv) Intermediate consignee, if applicable.
    (v) Authorized agent name and address.
    (vi) EIN or DUNS of the authorized agent.
    (vii) Country of ultimate destination.
    (viii) Method of transportation.
    (ix) Carrier identification and conveyance name.
    (x) Port of export.
    (xi) Foreign port of unloading.
    (xii) Shipping weight.
    (xiii) ECCN.
    (xiv) License or license exemption information.

    Note to paragraph (e)(2) of this section:
    For items in paragraphs (e)(2)(xiii) and (xiv) of this section, 
where the FPPI has assumed responsibility for determining and obtaining 
license authority, see requirements set forth in 15 CFR 758.3 of the 
EAR.

    (f) Authorizing an agent. In a power of attorney or other written 
authorization, authority is conferred upon an agent to perform certain 
specified acts or kinds of acts on behalf of a principal (see 15 CFR 
758.1(h) of the EAR). In cases where an authorized agent is filing EEI 
to the AES, the agent shall obtain a power of attorney or written 
authorization from a principal party in interest to file the information 
on its behalf. A power of attorney or written authorization should 
specify the responsibilities of the parties with particularity and 
should state that the agent has authority to act on behalf of a 
principal party in interest as its true and lawful agent for purposes of 
creating and filing EEI in accordance with the laws and regulations of 
the United States. In routed export transactions the USPPI is not 
required to provide an agent of the FPPI with a power of attorney or 
written authorization.
    Note to Sec. 30.3: The EAR defines the ``exporter'' as the person in 
the United States who has the authority of a principal party in interest 
to determine and control the sending of items out of the United States 
(see 15 CFR 772 of the EAR). For statistical purposes ``exporter'' is 
not defined in the FTR. Instead, however, the USPPI is defined in the 
FTR.


For purposes of licensing responsibility under the EAR, the U.S. agent 
of the FPPI may be the ``exporter'' or applicant on the license in 
certain routed export transactions (see 15 CFR 758.3 of the EAR). 
Therefore, due to the differences in export reporting requirements among 
Federal agencies, conformity of documentation is not required in the 
FTR.

[73 FR 31555, June 2, 2008, as amended at 74 FR 38916, Aug. 5, 2009; 78 
FR 16375, Mar. 14, 2013]

[[Page 244]]



Sec. 30.4  Electronic Export Information filing procedures, deadlines,
and certification statements.

    Two electronic filing options (predeparture and postdeparture) for 
transmitting EEI are available to the USPPI or authorized agent. The 
electronic postdeparture filing takes into account that complete 
information concerning export shipments may not always be available 
prior to exportation and accommodates these circumstances by providing, 
when authorized, for filing of EEI after departure. For example, for 
exports of seasonal and agricultural commodities, only estimated 
quantities, values, and consignees may be known prior to exportation. 
The procedures for obtaining certification as an AES filer and for 
applying for authorization to file on a postdeparture basis are 
described in Sec. 30.5.
    (a) EEI transmitted predeparture. The EEI shall always be 
transmitted prior to departure for the following types of shipments:
    (1) Used self-propelled vehicles as defined in 19 CFR 192.1 of U.S. 
Customs and Border Protection regulations.
    (2) Essential and precursor chemicals requiring a permit from the 
DEA;
    (3) Shipments defined as ``sensitive'' by Executive Order;
    (4) Shipments where a U.S. government agency requires predeparture 
filing;
    (5) Shipments defined as ``routed export transactions'' (see 
Sec. 30.3(e));
    (6) Shipments where complete outbound manifests are required prior 
to clearing vessels going directly to the countries identified in U.S. 
Customs and Border Protection regulations 19 CFR 4.75(c) and aircraft 
going directly or indirectly to those countries. (See U.S. Customs and 
Border Protection regulation 19 CFR 122.74(b)(2));
    (7) Items identified on the USML of the ITAR (22 CFR 121);
    (8) Shipments that require a license from the BIS and exports listed 
under BIS's grounds for denial of postdeparture filing status (see 15 
CFR 758.2);
    (9) Shipments that require a license from the Nuclear Regulatory 
Commission.
    (10) Shipments of rough diamonds classified under HS subheadings 
7102.10, 7102.21, and 7102.31 and exported (reexported) in accordance 
with the Kimberley Process; and
    (11) Shipments for which the USPPI has not been approved for 
postdeparture filing.
    (b) Filing deadlines for EEI transmitted predeparture. The USPPI or 
the authorized agent shall file the required EEI and have received the 
AES ITN no later than the time period specified as follows:
    (1) For USML shipments, refer to the ITAR (22 CFR 123.22(b)(1)) for 
specific requirements concerning predeparture filing time frames. In 
addition, if a filer is unable to acquire an ITN because the AES or 
AESDirect is not operating, the filer shall not export until the AES is 
operating and an ITN is acquired. The downtime filing citation is not to 
be used when the filer's system is down or experiencing delays.
    (2) For non-USML shipments, except shipments between the United 
States and Puerto Rico, file the EEI and provide the ITN as follows (See 
Sec. 30.4(b)(3), for filing timeframes for shipments between the United 
States and Puerto Rico):
    (i) For vessel cargo, the USPPI or the authorized agent shall file 
the EEI required by Sec. 30.6 and provide the filing citation or 
exemption legend to the exporting carrier twenty-four hours prior to 
loading cargo on the vessel at the U.S. port where the cargo is laden.
    (ii) For air cargo, including cargo being transported by Air Express 
Couriers, the USPPI or the authorized agent shall file the EEI required 
by Sec. 30.6 and provide the filing citation or exemption legend to the 
exporting carrier no later than two (2) hours prior to the scheduled 
departure time of the aircraft.
    (iii) For truck cargo, including cargo departing by Express 
Consignment Couriers, the USPPI or the authorized agent shall file the 
EEI required by Sec. 30.6 and provide the filing citation or exemption 
legend to the exporting carrier no later than one (1) hour prior to the 
arrival of the truck at the United States border to go foreign.

[[Page 245]]

    (iv) For rail cargo, the USPPI or the authorized agent shall file 
the EEI required by Sec. 30.6 and provide the filing citation or 
exemption legend to the exporting carrier no later than two (2) hours 
prior to the time the train arrives at the U.S. border to go foreign.
    (v) For mail and cargo shipped by other methods, except pipeline, 
the USPPI or the authorized agent shall file the EEI required by 
Sec. 30.6 and provide the filing citation or exemption legend to the 
exporting carrier no later than two (2) hours prior to exportation. (See 
Sec. 30.46 for filing deadlines for shipments sent by pipeline.)
    (vi) For all other modes, the USPPI or the authorized agent shall 
file the required EEI no later than two (2) hours prior to exportation.
    (3) For shipments between the United States and Puerto Rico, the AES 
proof of filing citation, postdeparture filing citation, or exemption 
citation must be presented to the carrier by the time the shipment 
arrives at the port of unloading.
    (4) For non-USML shipments when the AES or AESDirect is unavailable, 
use the following instructions:
    (i) If the participant's AES is unavailable, the filer must delay 
the export of the goods or find an alternative filing method;
    (ii) If AES or AESDirect is unavailable, the goods may be exported 
and the filer must:
    (A) Provide the appropriate downtime filing citation as described in 
Sec. 30.7(b) and Appendix D; and
    (B) Report the EEI at the first opportunity AES or AESDirect is 
available.
    (5) For used self-propelled vehicles as defined in 19 CFR 192.1 of 
U.S. Customs and Border Protection regulations, the USPPI or the 
authorized agent shall file the EEI as required by Sec. 30.6 and provide 
the filing citation to the CBP at least 72 hours prior to export. The 
filer must also provide the carrier with the filing citation as required 
by paragraph (b) of this section.
    (c) EEI transmitted postdeparture. Postdeparture filing is only 
available for approved USPPIs and provides for the electronic filing of 
the data elements required by Sec. 30.6 no later than five (5) calendar 
days after the date of exportation. For USPPIs approved for 
postdeparture filing, all shipments (other than those for which 
predeparture filing is specifically required), by all methods of 
transportation, may be exported with the filing of EEI made 
postdeparture. Authorized agents or service centers may transmit 
information postdeparture on behalf of USPPIs approved for postdeparture 
filing, or the approved USPPI may transmit the data postdeparture 
itself.
    (d) Proof of filing citation and exemption and exclusion legends. 
The USPPI or the authorized agent shall provide the exporting carrier 
with the proof of filing citation and exemption and exclusion legends as 
described in Sec. 30.7.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16376, Mar. 14, 2013]



Sec. 30.5  Electronic Export Information filing application and 
certification processes and standards.

    Prior to filing EEI, the USPPI or the authorized agent must be 
certified to file through the AES. A service center shall be certified 
to transmit electronically to the AES. The USPPI, authorized agent, or 
service center may use a software package designed by a certified vendor 
to file EEI through the AES. Once an authorized agent has successfully 
completed the certification process, any USPPI using that agent does not 
have to be certified. The certified authorized agent shall have a 
properly executed power of attorney or written authorization from the 
USPPI or FPPI, and be physically located in the United States to file 
EEI through the AES. The USPPI or authorized agent that utilizes a 
certified software vendor or service center shall complete certification 
testing. Service centers may only transmit export information; they may 
not prepare and file export information unless they have authorization 
from the USPPI in the form of a power of attorney or written 
authorization, thus making them authorized agents. The USPPI seeking 
approval for postdeparture filing privileges shall be approved before 
they or their authorized agent may file on a postdeparture basis.
    (a) AES application process--(1) AES Participation Application. The 
USPPI or authorized agent who chooses to file through the AES and seek 
approval for

[[Page 246]]

postdeparture filing privileges, must submit a complete on-line LOI at 
http://www.census.gov/aes.
    (2) AESDirect registration. The USPPI or authorized agent who 
chooses to file through AESDirect shall also complete the online 
AESDirect registration form at http://www.aesdirect.gov. After 
submitting the registration, an AESDirect filing account is created for 
the filing company. The person designated as the account administrator 
is responsible for activating the account and completing the 
certification process as discussed in paragraph (b)(2) of this section.
    (b) Certification process--(1) AES certification process. The USPPI 
or authorized agent shall perform an initial two-part communication test 
to ascertain whether its system is capable of both transmitting data to, 
and receiving data from, the AES. The USPPI or authorized agent shall 
demonstrate specific system application capabilities. The capability to 
correctly handle these system applications is the prerequisite to 
certification for participation in the AES. The USPPI or authorized 
agent shall successfully transmit the AES certification test. CBP's and/
or Census Bureau's client representatives provide assistance during 
certification testing. These representatives make the sole determination 
as to whether or not the USPPI or authorized agent qualifies for 
certification. Upon successful completion of certification testing, the 
USPPI's or authorized agent's status is moved from testing mode to 
operational status. The AES filers may be required to repeat the 
certification testing process at any time. The Census Bureau will 
provide the AES filer with a certification notice after the USPPI or 
authorized agent has been approved for operational status. The 
certification notice will include:

    (i) The date that filers may begin transmitting data;
    (ii) Reporting instructions; and
    (iii) Examples of the required AES proof of filing citations, 
postdeparture filing citations, AES downtime filing citation, and 
exemption legends.
    (2) AESDirect certification process. To become certified for 
AESDirect, filers shall demonstrate knowledge of this part and the 
ability to successfully transmit EEI. Upon successful completion of the 
certification testing, notification by e-mail will be sent to the 
account administrator when an account is fully activated for filing via 
AESDirect. Certified filers should print and retain the page 
congratulating the filer on passing the test.
    (c) Postdeparture filing approval process. Postdeparture filing is a 
privilege granted to approved USPPIs for their EEI to be filed up to 
five (5) calendar days after the date of export. The USPPI or its 
authorized agent may not transmit EEI postdeparture for certain types of 
shipments that are identified in Sec. 30.4(a). The USPPI may apply for 
postdeparture filing privileges by submitting a postdeparture filing 
application at www.census.gov/aes. An authorized agent may not apply on 
behalf of a USPPI. The Census Bureau will distribute the applications 
submitted by USPPI's who are applying for postdeparture to the CBP and 
the other federal government partnership agencies for their review and 
approval. Failure to meet the standards of the Census Bureau, CBP or any 
of the partnership agencies is reason for denial of the AES applicant 
for postdeparture filing privileges. Each partnership agency will 
develop its own internal postdeparture filing acceptance standards, and 
each agency will notify the Census Bureau of the USPPI's success or 
failure to meet that agency's acceptance standards. Any partnership 
agency may require additional information from USPPIs that are applying 
for postdeparture filing. The Census Bureau will notify the USPPI of the 
decision to either deny or approve its application for postdeparture 
filing privileges within ninety (90) calendar days of receipt of the 
postdeparture filing application by the Census Bureau.
    (1) Grounds for denial of postdeparture filing status. The Census 
Bureau may deny a USPPI's application for postdeparture filing 
privileges for any of the following reasons:
    (i) There is no history of filing for the USPPI through the AES.
    (ii) The USPPI's volume of EEI reported through the AES does not 
warrant participation in postdeparture filing.

[[Page 247]]

    (iii) The USPPI or its authorized agent has failed to submit EEI 
through the AES in a timely and accurate manner.
    (iv) The USPPI has a history of noncompliance with the Census Bureau 
export regulations contained in this part.
    (v) The USPPI has been indicted, convicted, or is currently under 
investigation for a felony involving a violation of federal export laws 
or regulations and the Census Bureau has evidence of probable cause 
supporting such violation, or the USPPI is in violation of Census Bureau 
export regulations contained in this part.
    (vi) The USPPI has made or caused to be made in the LOI a false or 
misleading statement or omission with respect to any material fact.
    (vii) The USPPI would pose a significant threat to national security 
interests such that its participation in postdeparture filing should be 
denied.
    (viii) The USPPI has multiple violations of either the EAR (15 CFR 
730 through 774) or the ITAR (22 CFR 120 through 130) within the last 
three (3) years.
    (ix) The USPPI fails to demonstrate the ability to meet the AES 
predeparture filing requirements.
    (2) Notice of denial. A USPPI denied postdeparture filing privileges 
by other agencies shall contact those agencies regarding the specific 
reason(s) for nonselection and for their appeal procedures. A USPPI 
denied postdeparture filing status by the Census Bureau will be provided 
with a specific reason for nonselection and a Census Bureau point of 
contact in an electronic notification letter. A USPPI may appeal the 
Census Bureau's nonselection decision by following the appeal procedure 
and reapplication procedure provided in paragraph (c)(5) of this 
section.
    (3) Revocation of postdeparture filing privileges--(i) Revocation by 
the Census Bureau. The Census Bureau may revoke postdeparture filing 
privileges of an approved USPPI for the following reasons:
    (A) The USPPI's volume of EEI reported in the AES does not warrant 
continued participation in postdeparture filing;
    (B) The USPPI or its authorized agent has failed to submit EEI 
through the AES in a timely and accurate manner;
    (C) The USPPI has made or caused to be made in the LOI a false or 
misleading statement or omission with respect to material fact;
    (D) The USPPI submitting the LOI has been indicted, convicted, or is 
currently under investigation for a felony involving a violation of 
federal export laws or regulations and the Census Bureau has evidence of 
probable cause supporting such violation, or the AES applicant is in 
violation of export rules and regulations contained in this part;
    (E) The USPPI has failed to comply with existing export regulations 
or has failed to pay any outstanding penalties assessed in connection 
with such noncompliance; or
    (F) The USPPI would pose a significant threat to national security 
interests such that its continued participation in postdeparture filing 
should be terminated.
    (G) The USPPI or its authorized agent files postdeparture for 
commodities that are identified in Sec. 30.4(a).
    (ii) Revocation by other agencies. Any of the other agencies may 
revoke a USPPI's postdeparture filing privileges with respect to 
transactions subject to the jurisdiction of that agency. When doing so, 
the agency shall notify both the Census Bureau and the USPPI whose 
authorization is being revoked.
    (4) Notice of revocation. Approved postdeparture filing USPPIs whose 
postdeparture filing privileges have been revoked by other agencies 
shall contact those agencies for their specific revocation and appeal 
procedures. When the Census Bureau makes a determination to revoke an 
approved USPPI's postdeparture filing privileges, the USPPI will be 
notified electronically of the reason(s) for the decision. In most 
cases, the revocation shall become effective when the USPPI has either 
exhausted all appeal procedures, or thirty (30) calendar days after 
receipt of the notice of revocation, if no appeal is filed. However, in 
cases judged to affect national security, revocations shall become 
effective immediately upon notification.
    (5) Appeal procedure. Any USPPI whose request for postdeparture 
filing

[[Page 248]]

privileges has been denied by the Census Bureau or whose postdeparture 
filing privileges have been revoked by the Census Bureau may appeal the 
decision by filing an appeal within thirty (30) calendar days of receipt 
of the notice of decision. Appeals should be addressed to the Chief, 
Foreign Trade Division, U.S. Census Bureau, Washington, DC 20233-6700. 
The Census Bureau will issue a written decision to the USPPI within 
thirty (30) calendar days from the date of receipt of the appeal by the 
Census Bureau. If a written decision is not issued within thirty (30) 
calendar days, the Census Bureau will forward to the USPPI a notice of 
extension within that time period. The USPPI will be provided with the 
reasons for the extension of this time period and an expected date of 
decision. The USPPIs who have had their postdeparture filing status 
denied or revoked may not reapply for this privilege for one year 
following written notification of the denial or revocation.
    (d) Electronic Export Information filing standards. The data 
elements required for filing EEI are contained in Sec. 30.6. When filing 
EEI, the USPPI or authorized agent shall comply with the data 
transmission procedures determined by CBP and the Census Bureau and 
shall agree to stay in complete compliance with all export rules and 
regulations in this part. Failure of the USPPI or the authorized agent 
of either the USPPI or FPPI to comply with these requirements 
constitutes a violation of the regulations in this part, and renders 
such principal party or the authorized agent subject to the penalties 
provided for in Subpart H of this part. In the case of AESDirect, when 
submitting a registration form to AESDirect, the registering company is 
certifying that it will be in compliance with all applicable export 
rules and regulations. This includes complying with the following 
security requirements:
    (1) AESDirect user names and passwords are to be kept secure by the 
account administrator and not disclosed to any unauthorized user or any 
persons outside the registered company.
    (2) Registered companies are responsible for those persons having a 
user name and password. If an employee with a user name and password 
leaves the company or otherwise is no longer an authorized user, the 
company shall immediately deactivate that username in the system to 
ensure the integrity and confidentiality of Title 13 data.
    (3) Antivirus software shall be installed and set to run 
automatically on all computers that access AESDirect. All AESDirect 
registered companies will maintain subscriptions with their antivirus 
software vendor to keep antivirus lists current. Registered companies 
are responsible for performing full scans of these systems on a regular 
basis, but not less than every thirty (30) days, to ensure the 
elimination of any virus contamination. If the registered company's 
computer system is infected with a virus, the company shall contact the 
Census Bureau's Foreign Trade Division Computer Security Officer and 
refrain from using AESDirect until it is virus free. Failure to comply 
with these requirements will result in immediate loss of privilege to 
use AESDirect until the registered company can establish to the 
satisfaction of the Census Bureau's Foreign Trade Division Computer 
Security Officer that the company's computer systems accessing AESDirect 
are virus free.
    (e) Monitoring the filing of EEI. The USPPI's or the authorized 
agent's AES filings will be monitored and reviewed for quality, 
timeliness, and coverage. The Census Bureau will provide performance 
reports to USPPIs and authorized agents who file EEI. The Census Bureau 
will take appropriate action to correct specific situations where the 
USPPI or authorized agent fails to maintain acceptable levels of data 
quality, timeliness, or coverage.
    (f) Support. The Census Bureau provides online services that allow 
the USPPI and the authorized agent to seek assistance pertaining to AES 
and this part. For AES assistance, filers may send an e-mail to 
[email protected] and for FTR assistance, filers may send an e-mail to 
[email protected] AESDirect is supported by a help desk available 
twelve (12) hours a day from 7 a.m. to 7 p.m. EST, seven (7) days a 
week. Filers can obtain contact information

[[Page 249]]

from the Web site http://www.aesdirect.gov.

[73 FR 31555, June 2, 2008, as amended at 78 FR 16376, Mar. 14, 2013]



Sec. 30.6  Electronic Export Information data elements.

    The information specified in this section is required for shipments 
transmitted to the AES. The data elements identified as ``mandatory'' 
shall be reported for each transaction. The data elements identified as 
``conditional'' shall be reported if they are required for or apply to 
the specific shipment. The data elements identified as ``optional'' may 
be reported at the discretion of the USPPI or the authorized agent.
    (a) Mandatory data elements are as follows:
    (1) USPPI and USPPI identification. The name, address, 
identification, and contact information of the USPPI shall be reported 
to the AES as follows:
    (i) Name of the USPPI. In all export transactions, the name listed 
in the USPPI field in the EEI shall be the USPPI in the transaction. 
(See Sec. 30.1 for the definition of the USPPI and Sec. 30.3 for details 
on the USPPI's reporting responsibilities.)
    (ii) Address of the USPPI. In all EEI filings, the USPPI shall 
report the address or location (no post office box number) from which 
the goods actually begin the journey to the port of export even if the 
USPPI does not own/lease the facility. For example, the EEI covering 
goods laden aboard a truck at a warehouse in Georgia for transport to 
Florida for loading onto a vessel for export to a foreign country shall 
show the address of the warehouse in Georgia. For shipments with 
multiple origins, report the address from which the commodity with the 
greatest value begins its export journey. If such information is not 
known, report the address in the state where the commodities are 
consolidated for export.
    (iii) USPPI identification number. The USPPI shall report its own 
IRS EIN in the USPPI field of the EEI. If the USPPI has only one EIN, 
report that EIN. If the USPPI has more than one EIN, report the EIN that 
the USPPI uses to report employee wages and withholdings, and not the 
EIN that is used to report only company earnings or receipts. If the 
USPPI does not have an EIN, the USPPI must obtain an EIN for reporting 
to the AES. Use of another company's or individual's EIN or other 
identification number is prohibited. The appropriate Party type code 
shall be reported through the AES. When a foreign entity is in the 
United States when the items are purchased or obtained for export, the 
foreign entity is the USPPI for filing purposes. In such situations, the 
foreign entity shall report a DUNS, border crossing number, passport 
number, or any number assigned by CBP.
    (iv) Contact information. Show contact name and telephone number.
    (2) Date of export. The date of export is the date when goods are 
scheduled to leave the port of export on the exporting carrier that is 
taking the goods out of the United States.
    (3) Ultimate consignee. The ultimate consignee is the person, party, 
or designee that is located abroad and actually receives the export 
shipment. The name and address of the ultimate consignee, whether by 
sale in the United States or abroad or by consignment, shall be reported 
in the EEI. The ultimate consignee as known at the time of export shall 
be reported. For shipments requiring an export license including 
shipments to international waters, the ultimate consignee reported in 
the AES shall be the person so designated on the export license or 
authorized to be the ultimate consignee under the applicable license 
exemption or exception in conformance with the EAR or ITAR, as 
applicable. For goods sold en route, report the appropriate ``To be Sold 
En Route'' indicator in the EEI, and report corrected information as 
soon as it is known (see Sec. 30.9 for procedures on correcting AES 
information).
    (4) U.S. state of origin. The U.S. state of origin is the 2-
character postal code for the state in which the goods begin their 
journey to the port of export. For example, a shipment covering goods 
laden aboard a truck at a warehouse in Georgia for transport to Florida 
for loading onto a vessel for export to a foreign country shall show 
Georgia as the state of origin. The U.S. state of origin may be 
different from the U.S.

[[Page 250]]

state where the goods were produced, mined, or grown. For shipments of 
multi-state origin, reported as a single shipment, report the U.S. state 
of the commodity with the greatest value. If such information is not 
known, report the state in which the commodities are consolidated for 
export.
    (5) Country of ultimate destination. The country of ultimate 
destination is the country in which goods are to be consumed, further 
processed, stored, or manufactured, as known to the USPPI at the time of 
export. The country of ultimate destination is the code issued by the 
ISO.
    (i) Shipments under an export license, license exception or license 
exemption. For shipments under an export license or license exemption 
issued by the Department of State, DDTC or export license or license 
exception issued by the Department of Commerce, BIS, the country of 
ultimate destination shall conform to the country of ultimate 
destination as shown on the license. In the case of a Department of 
State license, the country of ultimate destination is the country 
specified with respect to the end user. For goods licensed by other 
government agencies, refer to their specific requirements concerning 
providing country of destination information. For shipments to 
international waters for items that are being exported pursuant to a BIS 
license exception or No License Required (NLR), the country of 
destination to be reported is the nationality of the person(s) or entity 
assuming control of the item(s) subject to the Export Administration 
Regulations that are being exported.
    (ii) Shipments not moving under an export license. The country of 
ultimate destination is the country known to the USPPI at the time of 
exportation. The country to which the goods are being shipped is not the 
country of ultimate destination if the USPPI has knowledge at the time 
the goods leave the United States that they are intended for reexport or 
transshipment in their present form to another known country. For goods 
shipped to Canada, Mexico, Panama, Hong Kong, Belgium, United Arab 
Emirates, The Netherlands, or Singapore, for example, special care 
should be exercised before reporting these countries as the ultimate 
destination, since these are countries through which goods from the 
United States are frequently transshipped. If the USPPI does not know 
the ultimate destination of the goods, the country of destination to be 
shown is the last country, as known to the USPPI at the time of shipment 
from the United States, to which the goods are to be shipped in their 
present form. (For instructions as to the reporting of country of 
destination for vessels sold or transferred from the United States to 
foreign ownership, see Sec. 30.26.)
    (iii) For goods to be sold en route, report the country of the first 
port of call and then report corrected information as soon as it is 
known.
    (6) Method of transportation. The method of transportation is the 
means by which the goods are exported from the United States.
    (i) Conveyances exported under their own power. The mode of 
transportation for aircraft, vessels, or locomotives (railroad stock) 
transferring ownership or title and moving out of the United States 
under its own power is the mode of transportation by which the 
conveyance moves out of the United States.
    (ii) Exports through Canada, Mexico, or other foreign countries for 
transshipment to another destination. For transshipments through Canada, 
Mexico, or another foreign country, the mode of transportation is the 
mode of the carrier transporting the goods out of the United States.
    (7) Conveyance name/carrier name. The conveyance name/carrier name 
is the name of the conveyance/carrier transporting the goods out of the 
United States as known at the time of exportation. For exports by sea, 
the conveyance name is the vessel name. For exports by air, rail, or 
truck, the carrier name is that which corresponds to the carrier 
identification as specified in paragraph (a)(8) of this section. Terms, 
such as airplane, train, rail, truck, vessel, barge, or international 
footbridge are not acceptable. For shipments by other methods of 
transportation, including mail, fixed methods (pipeline), the 
conveyance/carrier name is not required.
    (8) Carrier identification. The carrier identification is the 
Standard Carrier

[[Page 251]]

Alpha Code (SCAC) for vessel, rail, and truck shipments or the 
International Air Transport Association (IATA) code for air shipments. 
The carrier identification specifies the carrier that transports the 
goods out of the United States. The carrier transporting the goods to 
the port of export and the carrier transporting the goods out of the 
United States may be different. For vessel shipments, report the carrier 
identification code of the party whose booking number was reported in 
the AES. For transshipments through Canada, Mexico, or another foreign 
country, the carrier identification is that of the carrier that 
transports the goods out of the United States. For modes other than 
vessel, air, rail and truck valid methods of transportation, including 
but not limited to mail, fixed transport (pipeline), and passenger hand 
carried, the carrier identification is not required. The National Motor 
Freight Traffic Association (NMFTA) issues and maintains the SCAC. (See 
www.nmfta.org.) The IATA issues and maintains the IATA codes. (See 
www.census.gov/trade for a list of IATA codes.)
    (9) Port of export. The port of export is the U.S. Customs and 
Border Protection (CBP) seaport or airport where the goods are loaded on 
the carrier that is taking the goods out of the United States, or the 
CBP port where exports by overland transportation cross the U.S. border 
into Canada or Mexico. For EEI reporting purposes only, for goods loaded 
aboard a conveyance (aircraft or vessel) that stops at several ports 
before clearing to the foreign country, the port of export is the first 
port where the goods were loaded on this conveyance. For goods off-
loaded from the original conveyance to another conveyance (even if the 
aircraft or vessel belongs to the same carrier) at any of the ports, the 
port where the goods were loaded on the last conveyance before going 
foreign is the port of export. The port of export shall be reported in 
terms of Schedule D, ``Classification of CBP Districts and Ports.'' Use 
port code 8000 for shipments by mail.
    (10) Related party indicator. Used to indicate when a transaction 
involving trade between a USPPI and an ultimate consignee where either 
party owns directly or indirectly 10 percent or more of the other party.
    (11) Domestic or foreign indicator. Indicates if the goods exported 
are of domestic or foreign origin. Report foreign goods separately from 
goods of domestic production even if the commodity classification number 
is the same.
    (i) Domestic. Exports of domestic goods include: Those commodities 
that are grown, produced, or manufactured (including commodities 
incorporating foreign components) in the United States, including goods 
exported from U.S. FTZs, Puerto Rico, or the U.S. Virgin Islands; and 
those articles of foreign origin that have been enhanced in value or 
changed from the form in which they were originally imported by further 
manufacture or processing in the United States, including goods exported 
from U.S. FTZs, Puerto Rico, or the U.S. Virgin Islands.
    (ii) Foreign. Exports of foreign goods include those commodities 
that are grown, produced, or manufactured in foreign countries that 
entered the United States including goods admitted to U.S. FTZs as 
imports and that, at the time of exportation, have undergone no change 
in form or condition or enhancement in value by further manufacture in 
the United States, in U.S. FTZs, in Puerto Rico, or in the U.S. Virgin 
Islands.
    (12) Commodity classification number. Report the 10-digit commodity 
classification number as provided in Schedule B, Statistical 
Classification of Domestic and Foreign Commodities Exported from the 
United States in the EEI. The 10-digit commodity classification number 
provided in the Harmonized Tariff Schedule of the United States (HTSUSA) 
may be reported in lieu of the Schedule B commodity classification 
number except as noted in the headnotes of the HTSUSA. The HTSUSA is a 
global classification system used to describe most world trade in goods. 
Furnishing the correct Schedule B or HTSUSA number does not relieve the 
USPPI or the authorized agent of furnishing a complete and accurate 
commodity description. When reporting the Schedule B number or HTSUSA 
number, the decimals shall be omitted. (See http://www.census.gov/

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trade for a list of Schedule B classification numbers.)
    (13) Commodity description. Report the description of the goods 
shipped in English in sufficient detail to permit verification of the 
Schedule B or HTSUSA number. Clearly and fully state the name of the 
commodity in terms that can be identified or associated with the 
language used in Schedule B or HTSUSA (usually the commercial name of 
the commodity), and any and all characteristics of the commodity that 
distinguish it from commodities of the same name covered by other 
Schedule B or HTSUSA classifications. If the shipment requires a 
license, the description reported in the EEI shall conform with that 
shown on the license. If the shipment qualifies for a license exemption, 
the description shall be sufficient to ensure compliance with that 
license exemption. However, where the description on the license does 
not state all of the characteristics of the commodity that are needed to 
completely verify the commodity classification number, as described in 
this paragraph, report the missing characteristics, as well as the 
description shown on the license, in the commodity description field of 
the EEI.
    (14) Primary unit of measure. The unit of measure shall correspond 
to the primary quantity as prescribed in the Schedule B or HTSUSA. If 
neither Schedule B nor HTSUSA specifies a unit of measure for the item, 
an ``X'' is required in the unit of measure field.
    (15) Primary quantity. The quantity is the total number of units 
that correspond to the first unit of measure specified in the Schedule B 
or HTSUSA. Where the unit of measure is in terms of weight (grams, 
kilograms, metric tons, etc.), the quantity reflects the net weight, not 
including the weight of barrels, boxes, or other bulky coverings, and 
not including salt or pickle in the case of salted or pickled fish or 
meats. For a few commodities where ``content grams'' or ``content 
kilograms'' or some similar weight unit is specified in Schedule B or 
HTSUSA, the quantity may be less than the net weight. The quantity is 
reported as a whole unit only, without commas or decimals. If the 
quantity contains a fraction of a whole unit, round fractions of one-
half unit or more up and fractions of less than one-half unit down to 
the nearest whole unit. (For example, where the unit for a given 
commodity is in terms of ``tons,'' a net quantity of 8.4 tons would be 
reported as 8 for the quantity. If the quantity is less than one unit, 
the quantity is 1.)
    (16) Shipping weight. The shipping weight is the weight in 
kilograms, which includes the weight of the commodity, as well as the 
weight of normal packaging, such as boxes, crates, barrels, etc. The 
shipping weight is required for exports by air, vessel, rail, and truck, 
and required for exports of household goods transported by all methods. 
For exports (except household goods) by mail, fixed transport 
(pipeline), or other valid methods, the shipping weight is not required 
and shall be reported as zero. For containerized cargo in lift vans, 
cargo vans, or similar substantial outer containers, the weight of such 
containers is not included in the shipping weight. If the shipping 
weight is not available for each Schedule B or HTSUSA item included in 
one or more containers, the approximate shipping weight for each item is 
estimated and reported. The total of these estimated weights equals the 
actual shipping weight of the entire container or containers.
    (17) Value. In general, the value to be reported in the EEI shall be 
the value of the goods at the U.S. port of export in U.S. dollars. The 
value shall be the selling price (or the cost, if the goods are not 
sold), plus inland or domestic freight, insurance, and other charges to 
the U.S. seaport, airport, or land border port of export. Cost of goods 
is the sum of expenses incurred in the USPPI's acquisition or production 
of the goods. Report the value to the nearest dollar, omit cents. 
Fractions of a dollar less than 50 cents should be ignored, and 
fractions of 50 cents or more should be rounded up to the next dollar.
    (i) Selling price. The selling price for goods exported pursuant to 
sale, and the value to be reported in the EEI, is the USPPI's price to 
the FPPI (the foreign buyer). Deduct from the selling price any 
unconditional discounts, but

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do not deduct discounts that are conditional upon a particular act or 
performance on the part of the foreign buyer. For goods shipped on 
consignment without a sale actually having been made at the time of 
export, the selling price to be reported in the EEI is the market value 
at the time of export at the U.S. port.
    (ii) Adjustments. When necessary, make the following adjustments to 
obtain the value.
    (A) Where goods are sold at a point other than the port of export, 
freight, insurance, and other charges required in moving the goods from 
their U.S. point of origin to the exporting carrier at the port of 
export or border crossing point shall be added to the selling price (as 
defined in paragraph (a)(17)(i) of this section) for purposes of 
reporting the value in the EEI.
    (B) Where the actual amount of freight, insurance, and other 
domestic costs is not available, an estimate of the domestic costs shall 
be made and added to the cost of the goods or selling price to derive 
the value to be reported in the EEI. Add the estimated domestic costs to 
the cost or selling price of the goods to obtain the value to be 
reported in the EEI.
    (C) Where goods are sold at a ``delivered'' price to the foreign 
destination, the cost of loading the goods on the exporting carrier, if 
any, and freight, insurance, and other costs beyond the port of export 
shall be subtracted from the selling price for purposes of reporting 
value in the EEI. If the actual amount of such costs is not available, 
an estimate of the costs should be subtracted from the selling price.
    (D) Costs added to or subtracted from the selling price in 
accordance with the instructions in this paragraph (a)(17)(ii) should 
not be shown separately in the EEI, but the value reported should be the 
value after making such adjustments, where required, to arrive at the 
value of the goods at the U.S. port of export.
    (iii) Exclusions. Exclude the following from the selling price of 
goods exported.
    (A) Commissions to be paid by the USPPI to its agent abroad or 
commissions to be deducted from the selling price by the USPPI's agent 
abroad.
    (B) The cost of loading goods on the exporting carrier at the port 
of export.
    (C) Freight, insurance, and any other charges or transportation 
costs beyond the port of export.
    (D) Any duties, taxes, or other assessments imposed by foreign 
countries.
    (iv) For definitions of the value to be reported in the EEI for 
special types of transactions where goods are not being exported 
pursuant to commercial sales, or where subsidies, government financing 
or participation, or other unusual conditions are involved, see Subpart 
C of this part.
    (18) Export information code. A code that identifies the type of 
export shipment or condition of the exported items (e.g., goods donated 
for relief or charity, impelled shipments, shipments under the Foreign 
Military Sales program, household goods, and all other shipments). (For 
the list of the codes see Appendix B.)
    (19) Shipment reference number. A unique identification number 
assigned by the filer that allows for the identification of the shipment 
in the filer's system. The reuse of the shipment reference number is 
prohibited.
    (20) Line number. A number that identifies the specific commodity 
line item within a shipment.
    (21) Hazardous material indicator. An indicator that identifies 
whether the shipment is hazardous as defined by the Department of 
Transportation.
    (22) Inbond code. The code indicating whether the shipment is being 
transported under bond.
    (23) License code/license exemption code. The code that identifies 
the commodity as having a federal government agency requirement for a 
license, permit, authorization, license exception or exemption or that 
no license is required.
    (24) Routed export transaction indicator. An indicator that 
identifies that the shipment is a routed export transaction as defined 
in Sec. 30.3.
    (25) Shipment filing action request indicator. An indicator that 
allows the filer to add, change, replace, or cancel an export shipment 
transaction.
    (26) Line item filing action request indicator. An indicator that 
allows the filer to add, change, or delete a commodity

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line within an export shipment transaction.
    (27) Filing option indicator. An indicator of whether the filer is 
reporting export information predeparture or postdeparture. See 
Sec. 30.4 for more information on EEI filing options.
    (28) Ultimate consignee type. Provide the business function of the 
ultimate consignee that most often applies. If more than one type 
applies to the ultimate consignee, report the type that applies most 
often. For purposes of this paragraph, the ultimate consignee will be 
designated as a Direct Consumer, Government Entity, Reseller, or Other/
Unknown, defined as follows:
    (i) Direct Consumer--a non-government institution, enterprise, or 
company that will consume or use the exported good as a consumable, for 
its own internal processes, as an input to the production of another 
good or as machinery or equipment that is part of a manufacturing 
process or a provision of services and will not resell or distribute the 
good.
    (ii) Government Entity--a government-owned or government-controlled 
agency, institution, enterprise, or company.
    (iii) Reseller--a non-government reseller, retailer, wholesaler, 
distributor, distribution center or trading company.
    (iv) Other/Unknown--an entity that is not a Direct Consumer, 
Government Entity or Reseller, as defined above, or whose ultimate 
consignee type is not known at the time of export.
    (b) Conditional data elements are as follows:
    (1) Authorized agent and authorized agent identification. The 
authorized agent is the person or entity in the United States who is 
authorized by the USPPI or the FPPI to prepare and file the EEI or the 
person or entity, if any, named on the export license. If an authorized 
agent is used, the following information shall be provided to the AES:
    (i) U.S. Authorized agent's identification number. Report the U.S. 
authorized agent's own EIN or DUNS for the first shipment and for each 
subsequent shipment. Use of another company's or individual's EIN or 
other identification number is prohibited. The party ID type of agent 
identification (E = EIN, D = DUNS) shall be indicated.
    (ii) Name of the authorized agent. Report the name of the authorized 
agent. (See Sec. 30.3 for details on the specific reporting 
responsibilities of authorized agents and Subpart B of this part for 
export control licensing requirements for authorized agents.)
    (iii) Address of the authorized agent. Report the address or 
location (no post office box number) of the authorized agent. The 
authorized agent's address shall be reported with the initial shipment. 
Subsequent shipments may be identified by the agent's identification 
number.
    (iv) Contact information. Report the contact name and telephone 
number.
    (2) Intermediate consignee. The name and address of the intermediate 
consignee (if any) shall be reported. The intermediate consignee acts in 
a foreign country as an agent for the principal party in interest or the 
ultimate consignee for the purpose of effecting delivery of the export 
shipment to the ultimate consignee. The intermediate consignee is the 
person named as such on the export license or authorized to act as such 
under the applicable general license and in conformity with the EAR.
    (3) FTZ identifier. If goods are removed from a FTZ and not entered 
for consumption, report the FTZ identifier. This is the unique 7-digit 
alphanumeric identifier assigned by the Foreign Trade Zone Board that 
identifies the FTZ, subzone or site from which goods are withdrawn for 
export.
    (4) Foreign port of unlading. The foreign port of unlading is the 
foreign port in the country where the goods are removed from the 
exporting carrier. The foreign port does not have to be located in the 
country of destination. For exports by sea to foreign countries, not 
including Puerto Rico, the foreign port of unlading is the code in terms 
of Schedule K, Classification of Foreign Ports by Geographic Trade Area 
and Country. For exports by sea or air between the United States and 
Puerto Rico, the foreign port of unlading is the code in terms of 
Schedule D, Classification of CBP Districts and Ports. The foreign port 
of unlading is not required

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for exports by other modes of transportation, including rail, truck, 
mail, fixed (pipeline), or air (unless between the U.S. and Puerto 
Rico).
    (5) Export license number/CFR citation/KPC number. License number, 
permit number, citation, or authorization number assigned by the 
Department of Commerce, BIS; Department of State, DDTC; Department of 
the Treasury, OFAC; Department of Justice, DEA; Nuclear Regulatory 
Commission; or any other federal government agency.
    (6) Export Control Classification Number (ECCN). The number used to 
identify items on the CCL, Supplement No. 1 to Part 774 of the EAR. The 
ECCN consists of a set of digits and a letter. Items that are not 
classified under an ECCN are designated ``EAR99''.
    (7) Secondary unit of measure. The unit of measure that corresponds 
to the secondary quantity as prescribed in the Schedule B or HTSUSA. If 
neither Schedule B nor HTSUSA specifies a secondary unit of measure for 
the item, the unit of measure is not required.
    (8) Secondary quantity. The total number of units that correspond to 
the secondary unit of measure, if any, specified in the Schedule B or 
HTSUSA. See the definition of primary quantity for specific instructions 
on reporting the quantity as a weight and whole unit, rounding 
fractions.
    (9) Vehicle Identification Number (VIN)/Product ID. The 
identification number found on the reported used vehicle. For used self-
propelled vehicles that do not have a VIN, the Product ID is reported. 
``Used'' vehicle refers to any self-propelled vehicle where the 
equitable or legal title to which has been transferred by a 
manufacturer, distributor, or dealer to an ultimate purchaser. See U.S. 
Customs and Border Protection regulations 19 CFR 192.1 for more 
information on exports of used vehicles.
    (10) Vehicle ID qualifier. The qualifier that identifies the type of 
used vehicle number reported. The valid codes are V for VIN and P for 
Product ID.
    (11) Vehicle title number. The number issued by the Motor Vehicle 
Administration.
    (12) Vehicle title state code. The 2-character postal code for the 
state or territory that issued the vehicle title.
    (13) Entry number. The entry number must be reported for goods that 
are entered in lieu of being transported under bond for which the 
importer of record is a foreign entity or, for reexports of goods 
withdrawn from a FTZ for which a NAFTA deferred duty claim (entry type 
08) could have been made, but that the importer elected to enter for 
consumption under CBP entry type 06. For goods imported into the United 
States for export to a third country of ultimate destination, where the 
importer of record on the entry is a foreign entity, the USPPI will be 
the authorized agent designated by the foreign importer for service of 
process. The USPPI, in this circumstance, is required to report the 
import entry number.
    (14) Transportation reference number (TRN). The TRN is as follows:
    (i) Vessel shipments. Report the booking number for vessel 
shipments. The booking number is the reservation number assigned by the 
carrier to hold space on the vessel for cargo being exported. The TRN is 
required for all vessel shipments.
    (ii) Air shipments. Report the master air waybill number for air 
shipments. The air waybill number is the reservation number assigned by 
the carrier to hold space on the aircraft for cargo being exported. The 
TRN is optional for air shipments.
    (iii) Rail shipments. Report the bill of lading (BL) number for rail 
shipments. The BL number is the reservation number assigned by the 
carrier to hold space on the rail car for cargo being exported. The TRN 
is optional for rail shipments.
    (iv) Truck shipments. Report the freight or pro bill number for 
truck shipments. The freight or pro bill number is the number assigned 
by the carrier to hold space on the truck for cargo being exported. The 
freight or pro bill number correlates to a bill of lading number, air 
waybill number or trip number for multimodal shipments. The TRN is 
optional for truck shipme