[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page 1]]

          
          
          Title 49

Transportation


________________________

Parts 1 to 99

                         Revised as of October 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

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

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 49:
          SUBTITLE A--Office of the Secretary of 
          Transportation                                             3
  Finding Aids:
      Table of CFR Titles and Chapters........................     717
      Alphabetical List of Agencies Appearing in the CFR......     737
      List of CFR Sections Affected...........................     747

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 49 CFR 1.1 refers to 
                       title 49, part 1, section 
                       1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
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Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
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inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

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the revision dates of the 50 CFR titles.

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available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    October 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of nine volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571, 
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume 
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current 
regulations issued under chapter I--Pipeline and Hazardous Materials 
Safety Administration (DOT); the fourth volume (parts 200-299) contains 
the current regulations issued under chapter II--Federal Railroad 
Administration (DOT); the fifth volume (parts 300-399) contains the 
current regulations issued under chapter III--Federal Motor Carrier 
Safety Administration (DOT); the sixth volume (parts 400-571) contains 
the current regulations issued under chapter IV--Coast Guard (DHS), and 
some of chapter V--National Highway Traffic Safety Administration (DOT); 
the seventh volume (parts 572-999) contains the rest of the regulations 
issued under chapter IV, and the current regulations issued under 
chapter VI--Federal Transit Administration (DOT), chapter VII--National 
Railroad Passenger Corporation (AMTRAK), and chapter VIII--National 
Transportation Safety Board; the eighth volume (parts 1000-1199) 
contains the current regulations issued under chapter X--Surface 
Transportation Board and the ninth volume (part 1200 to end) contains 
the current regulations issued under chapter X--Surface Transportation 
Board, chapter XI--Research and Innovative Technology Administration, 
and chapter XII--Transportation Security Administration, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2017.

    In the volume containing parts 100-177, see Sec.  172.101 for the 
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards 
appear in part 571.

    For this volume, Gabrielle E. Burns 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 49--TRANSPORTATION




                   (This book contains parts 1 to 99)

  --------------------------------------------------------------------
                                                                    Part

SUBTITLE A--Office of the Secretary of Transportation.......           1

[[Page 3]]



          Subtitle A--Office of the Secretary of Transportation




  --------------------------------------------------------------------
Part                                                                Page
1               Organization and delegation of powers and 
                    duties..................................           5
3               Official seal...............................          52
5               Rulemaking procedures.......................          52
6               Implementation of Equal Access to Justice 
                    Act in agency proceedings...............          55
7               Public availability of information..........          61
8               Classified information: Classification/
                    declassification/access.................          78
9               Testimony of employees of the Department and 
                    production of records in legal 
                    proceedings.............................          84
10              Maintenance of and access to records 
                    pertaining to individuals...............          88
11              Protection of human subjects................         101
15              Protection of sensitive security information         112
17              Intergovernmental review of Department of 
                    Transportation programs and activities..         126
18-19

[Reserved]

20              New restrictions on lobbying................         132
21              Nondiscrimination in federally-assisted 
                    programs of the Department of 
                    Transportation--Effectuation of Title VI 
                    of the Civil Rights Act of 1964.........         136
22              Short-term lending program (STLP)...........         147
23              Participation of disadvantaged business 
                    enterprise in airport concessions.......         158
24              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         167
25              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         188
26              Participation by disadvantaged business 
                    enterprises in Department of 
                    Transportation financial assistance 
                    programs................................         235

[[Page 4]]

27              Nondiscrimination on the basis of disability 
                    in programs or activities receiving 
                    Federal financial assistance............         251
28              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Transportation.......................         328
30              Denial of public works contracts to 
                    suppliers of goods and services of 
                    countries that deny procurement market 
                    access to U.S. contractors..............         344
31              Program fraud civil remedies................         351
32              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         356
33              Transportation priorities and allocation 
                    system..................................         372
37              Transportation services for individuals with 
                    disabilities (ADA)......................         377
38              Americans with Disabilities Act (ADA) 
                    accessibility specifications for 
                    transportation vehicles.................         402
39              Transportation for individuals with 
                    disabilities: passenger vessels.........         500
40              Procedures for transportation workplace drug 
                    and alcohol testing programs............         538
41              Seismic safety..............................         554
71              Standard time zone boundaries...............         670
79              Medals of honor.............................         672
80              Credit assistance for surface transportation 
                    projects................................         678
89              Implementation of the Federal Claims 
                    Collection Act..........................         679
91              International air transportation fair 
                    competitive practices...................         684
92              Recovering debts to the United States by 
                    salary offset...........................         691
93              Aircraft allocation.........................         693
95

[Reserved]

98              Enforcement of restrictions on post-
                    employment activities...................         703
99              Employee responsibilities and conduct.......         703
Appendix to Subtitle A--United States Railway Association--
  Employee Responsibilities and Conduct.....................         706

[[Page 5]]



PART 1_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--Table of Contents



                            Subpart A_General

Sec.
1.1 Overview.
1.2 Organization of the Department.
1.3 Exercise of authority.
1.4 Construction.

                    Subpart B_Office of the Secretary

1.11 Overview.
1.13 OST key responsibilities.
1.15 OST structure.
1.17 OST line of secretarial succession.

                              OST Officials

1.20 Secretary of Transportation.
1.21 Reservations of Authority to the Secretary of Transportation.
1.22 Deputy Secretary.
1.23 Delegations to the Deputy Secretary.
1.24 Under Secretary of Transportation for Policy.
1.25 Delegations to the Under Secretary of Transportation for Policy.
1.25a Redelegations by the Under Secretary of Transportation for Policy.
1.26 General Counsel.
1.27 Delegations to the General Counsel.
1.27a Delegations to the Career Deputy General Counsel.
1.27b Delegations to the Assistant General Counsel for General Law.
1.30 Assistant Secretaries.
1.31 Assistant Secretary for Transportation Policy.
1.32 Assistant Secretary for Aviation and International Affairs.
1.33 Chief Financial Officer and Assistant Secretary for Budget and 
          Programs.
1.34 Delegations to the Chief Financial Officer and Assistant Secretary 
          for Budget and Programs.
1.35 Assistant Secretary for Governmental Affairs.
1.36 Delegations to the Assistant Secretary for Governmental Affairs.
1.37 Assistant Secretary for Administration.
1.38 Delegations to the Assistant Secretary for Administration.
1.38a Redelegations by the Assistant Secretary for Administration.
1.39 Executive Secretariat.
1.40 Departmental Office of Civil Rights.
1.41 Delegations to the Director of the Departmental Office of Civil 
          Rights.
1.42 Office of Small and Disadvantaged Business Utilization.
1.43 Delegations to the Director of the Office of Small and 
          Disadvantaged Business Utilization.
1.44 Office of Intelligence, Security and Emergency Response.
1.45 Delegations to the Director of the Office of Intelligence, Security 
          and Emergency Response.
1.46 Office of Public Affairs.
1.47 Delegations to the Assistant to the Secretary and Director of 
          Public Affairs.
1.48 Office of the Chief Information Officer.
1.49 Delegations to the Chief Information Officer.
1.50 Office of Drug & Alcohol Policy & Compliance.
1.60 General Authorizations and Delegations to Secretarial Officers.

                  Subpart C_Office of Inspector General

1.70 Overview.
1.71 Key responsibilities.
1.72 Structure.
1.73 Authority of Inspector General.
1.74 Delegations to Inspector General.

                   Subpart D_Operating Administrations

1.80 Overview.
1.81 Delegations to all Administrators.
1.81a Redelegation by all Administrators.
1.82 The Federal Aviation Administration.
1.83 Delegations to the Federal Aviation Administrator.
1.84 The Federal Highway Administration.
1.85 Delegations to the Federal Highway Administrator.
1.86 The Federal Motor Carrier Safety Administration.
1.87 Delegations to the Federal Motor Carrier Safety Administrator.
1.88 The Federal Railroad Administration.
1.89 Delegations to the Federal Railroad Administrator.
1.90 The Federal Transit Administration.
1.91 Delegations to the Federal Transit Administrator.
1.92 The Maritime Administration.
1.93 Delegations to the Maritime Administrator.
1.94 The National Highway Traffic Safety Administration.
1.95 Delegations to the National Highway Traffic Safety Administrator.
1.96 The Pipeline and Hazardous Materials Safety Administration.
1.97 Delegations to the Pipeline and Hazardous Materials Safety 
          Administrator.
1.98 The Research and Innovative Technology Administration.
1.99 Delegations to the Research and Innovative Technology 
          Administrator.
1.100 The Saint Lawrence Seaway Development Corporation.
1.101 Delegations to the Saint Lawrence Seaway Development Corporation 
          Administrator.

[[Page 6]]


Appendix A to Part 1--Delegations and Redelegations by Secretarial 
          Officers

    Authority: 49 U.S.C. 322.

    Source: 81 FR 19819, Apr. 5, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  1.1  Overview.

    This part describes the organization of the United States Department 
of Transportation and provides for the performance of duties imposed 
upon, and the exercise of powers vested in, the Secretary of 
Transportation by law.



Sec.  1.2  Organization of the Department.

    (a) The Secretary of Transportation is the head of the Department.
    (b) The Department comprises the Office of the Secretary of 
Transportation (OST), the Office of the Inspector General (OIG), and the 
following Operating Administrations, each headed by an Administrator who 
reports directly to the Secretary:
    (1) The Federal Aviation Administration (FAA).
    (2) The Federal Highway Administration (FHWA).
    (3) The Federal Motor Carrier Safety Administration (FMCSA).
    (4) The Federal Railroad Administration (FRA).
    (5) The Federal Transit Administration (FTA).
    (6) The Maritime Administration (MARAD).
    (7) The National Highway Traffic Safety Administration (NHTSA).
    (8) The Pipeline and Hazardous Materials Safety Administration 
(PHMSA).
    (9) The Research and Innovative Technology Administration (RITA).
    (10) The Saint Lawrence Seaway Development Corporation (SLSDC).



Sec.  1.3  Exercise of authority.

    (a) In exercising powers and performing duties delegated by this 
part or redelegated pursuant thereto, officials of the Department of 
Transportation are governed by applicable laws, Executive Orders and 
regulations and by policies, objectives, plans, standards, procedures, 
and limitations as may be issued from time to time by or on behalf of 
the Secretary, or, with respect to matters under their jurisdictions, by 
or on behalf of the Deputy Secretary, the Under Secretary, the General 
Counsel, an Assistant Secretary, the Inspector General, or an 
Administrator. This includes, wherever specified, the requirement for 
advance notice to, prior coordination with, or prior approval by an 
authority other than that of the official proposing to act.
    (b) Subject to the reservations of authority to the Secretary of 
Transportation in Sec.  1.21, the Deputy Secretary, the Under Secretary, 
the General Counsel, the Assistant Secretaries, the Inspector General, 
and the Administrators exercise the powers and perform the duties 
delegated to them under this part.
    (c) For delegations of authority vested in the Secretary by 
Executive Order 13526 (see also Executive Orders 12958 and 12065) 
originally to classify documents as secret and confidential, see Sec.  
8.11 of this subtitle. Previous delegations of authority to Department 
of Transportation officials to originally classify information as secret 
and confidential are hereby rescinded.



Sec.  1.4  Construction.

    For the purposes of this part:
    (a) ``Federal Aviation Administrator'' is synonymous with 
``Administrator of the Federal Aviation Administration.''
    (b) ``Federal Highway Administrator'' is synonymous with 
``Administrator of the Federal Highway Administration.''
    (c) ``Federal Motor Carrier Safety Administrator'' is synonymous 
with ``Administrator of the Federal Motor Carrier Safety 
Administration.''
    (d) ``Federal Railroad Administrator'' is synonymous with 
``Administrator of the Federal Railroad Administration.''
    (e) ``Federal Transit Administrator'' is synonymous with 
``Administrator of the Federal Transit Administration.''
    (f) ``Maritime Administrator'' is synonymous with ``Administrator of 
the Maritime Administration.''
    (g) ``National Highway Traffic Safety Administrator'' is synonymous 
with ``Administrator of the National Highway Traffic Safety 
Administration.''

[[Page 7]]

    (h) ``Pipeline and Hazardous Materials Safety Administrator'' is 
synonymous with ``Administrator of the Pipeline and Hazardous Materials 
Safety Administration.''
    (i) ``Saint Lawrence Seaway Development Corporation Administrator'' 
is synonymous with ``Administrator of the Saint Lawrence Seaway 
Development Corporation.''



                    Subpart B_Office of the Secretary



Sec.  1.11  Overview.

    This subpart sets forth the OST's key responsibilities, its basic 
organizational structure, and the line of Secretarial succession in time 
of need. It also describes the key responsibilities of OST officials, 
and sets forth delegations and reservations of authority to those 
officials.



Sec.  1.13  OST key responsibilities.

    (a) The OST is responsible for:
    (1) Providing leadership in formulating and executing well-balanced 
national and international transportation objectives, policies, and 
programs to ensure the Nation has safe, economically competitive 
transportation systems that support U.S. interests, that are maintained 
in a state of good repair, that foster environmental sustainability, and 
that support livable communities;
    (2) Chairing the Department's Safety Council;
    (3) Stimulating and promoting research and development in all modes 
and types of transportation, with special emphasis on transportation 
safety;
    (4) Coordinating the various transportation programs of the Federal 
Government;
    (5) Encouraging maximum private development of transportation 
services;
    (6) Providing responsive, timely, and effective liaison with 
Congress and public and private organizations on transportation matters;
    (7) Providing innovative approaches to urban transportation and 
environmental enhancement programs;
    (8) Overseeing the Department's multimodal freight policy;
    (9) Providing effective management of the Department as a whole to 
ensure it achieves organizational excellence;
    (10) Leading Department-wide efforts for greater transparency and 
accountability;
    (11) Administering the Department's Livable Communities initiative 
to increase access to convenient and affordable transportation choices 
and improve transportation networks that accommodate pedestrians and 
bicycles;
    (12) Coordinating the Department's credit and financial assistance 
programs by leading the Credit Council to ensure responsible financing 
for the Nation's transportation projects;
    (13) Formulating and executing policies to ensure effective 
operation of the Department's aviation economic program including 
functions related to consumer protection and civil rights, domestic 
airline licensing matters, competition oversight, airline data 
collection, and review of international route negotiations and route 
awards to carriers; and
    (14) Leading and coordinating Federal Government transportation 
fringe benefit programs.
    (b) [Reserved]



Sec.  1.15  OST structure.

    (a) Secretary and Deputy Secretary. The Secretary and Deputy 
Secretary are assisted by the following, all of which report directly to 
the Secretary:
    (1) The Chief of Staff;
    (2) The Executive Secretariat;
    (3) The Departmental Office of Civil Rights;
    (4) The Office of Small and Disadvantaged Business Utilization;
    (5) The Office of Intelligence, Security and Emergency Response;
    (6) The Office of Public Affairs;
    (7) The Office of the Chief Information Officer; and
    (8) The Office of Drug & Alcohol Policy & Compliance.
    (b) The Under Secretary of Transportation for Policy, the General 
Counsel, and the Assistant Secretaries for Administration, Budget and 
Programs, and Governmental Affairs also report directly to the 
Secretary.
    (c) Office of the Under Secretary of Transportation for Policy. This 
Office is composed of:

[[Page 8]]

    (1) The Office of the Assistant Secretary for Transportation Policy, 
which includes:
    (i) The Office of Policy Development, Strategic Planning and 
Performance;
    (ii) The Office of Infrastructure Finance and Innovation; and
    (iii) The Office of the Chief Economist.
    (2) The Office of the Assistant Secretary for Aviation and 
International Affairs, which includes:
    (i) The Office of International Transportation and Trade;
    (ii) The Office of International Aviation; and
    (iii) The Office of Aviation Analysis.
    (d) Office of the General Counsel. This Office is composed of:
    (1) The Office of General Law;
    (2) The Office of International Law;
    (3) The Office of Litigation;
    (4) The Office of Legislation;
    (5) The Office of Regulation and Enforcement;
    (6) The Office of Operations, which includes the Freedom of 
Information Act (FOIA) Office;
    (7) The Office of Aviation Enforcement and Proceedings, which 
includes the Aviation Consumer Protection Division; and
    (8) The Center for Alternative Dispute Resolution.
    (e) Office of the Chief Financial Officer and Assistant Secretary 
for Budget and Programs. This Office is composed of:
    (1) The Office of Budget and Program Performance;
    (2) The Office of Financial Management;
    (3) The Office of the Chief Financial Officer for the Office of the 
Secretary; and
    (4) The Office of Credit Oversight and Risk Management.
    (f) Office of the Assistant Secretary for Governmental Affairs. This 
Office contains the following functional areas: Congressional Affairs 
and Intergovernmental Affairs; and includes a Deputy Assistant Secretary 
for Tribal Government Affairs.
    (g) Office of the Assistant Secretary for Administration. This 
Office is composed of:
    (1) The Office of Audit Relations;
    (2) The Office of Human Resource Management;
    (3) The Office of Hearings;
    (4) The Office of Security;
    (5) The Office of the Senior Procurement Executive;
    (6) The Office of Financial Management and Transit Benefit Programs; 
and
    (7) The Office of Facilities, Information and Asset Management.



Sec.  1.17  OST line of secretarial succession.

    (a) The following officials, in the order indicated, shall act as 
Secretary of Transportation, in case of the absence or disability of the 
Secretary, until the absence or disability ceases, or in the case of a 
vacancy, until a successor is appointed. Notwithstanding the provisions 
of this section, the President retains discretion, to the extent 
permitted by the law, to depart from this order in designating an acting 
Secretary of Transportation.
    (1) Deputy Secretary.
    (2) Under Secretary of Transportation for Policy.
    (3) General Counsel.
    (4) Chief Financial Officer and Assistant Secretary for Budget and 
Programs.
    (5) Assistant Secretary for Transportation Policy.
    (6) Assistant Secretary for Governmental Affairs.
    (7) Assistant Secretary for Aviation and International Affairs.
    (8) Assistant Secretary for Administration.
    (9) Administrator of the Federal Highway Administration.
    (10) Administrator of the Federal Aviation Administration.
    (11) Administrator of the Federal Motor Carrier Safety 
Administration.
    (12) Administrator of the Federal Railroad Administration.
    (13) Administrator of the Federal Transit Administration.
    (14) Administrator of the Maritime Administration.
    (15) Administrator of the Pipeline and Hazardous Materials Safety 
Administration.
    (16) Administrator of the National Highway Traffic Safety 
Administration.

[[Page 9]]

    (17) Administrator of the Research and Innovative Technology 
Administration.
    (18) Administrator of the Saint Lawrence Seaway Development 
Corporation.
    (19) Regional Administrator, Southern Region, Federal Aviation 
Administration.
    (20) Director, Resource Center, Lakewood, Colorado, Federal Highway 
Administration.
    (21) Regional Administrator, Northwest Mountain Region, Federal 
Aviation Administration.
    (b) Without regard to the foregoing, a person directed to perform 
the duties of the Secretary pursuant to 5 U.S.C. 3347 (the Vacancies 
Act) shall act as Secretary of Transportation.

                              OST Officials



Sec.  1.20  Secretary of Transportation.

    The Secretary is the head of the Department. The Secretary exercises 
oversight of all of the OST components, as well as each of the Operating 
Administrations, and overall planning, direction, and control of the 
Department's agenda.



Sec.  1.21  Reservations of Authority to the Secretary of Transportation.

    (a) All powers and duties that are not delegated by the Secretary in 
this part, or otherwise vested in officials other than the Secretary, 
are reserved to the Secretary. Except as otherwise provided, the 
Secretary may exercise powers and duties delegated or assigned to 
officials other than the Secretary.
    (b) The delegations of authority in subpart C (Office of the 
Inspector General) and subpart D (Operating Administrations) of this 
part do not extend to the following actions, authority for which is 
reserved to the Secretary or the Secretary's delegatee within the Office 
of the Secretary:
    (1) General transportation matters.
    (i) Transportation leadership authority pursuant to 49 U.S.C. 301 
(Duties of the Secretary of Transportation: Leadership, consultation, 
and cooperation).
    (ii) Functions relating to transportation activities, plans, and 
programs under 49 U.S.C. 304 (Joint activities with the Secretary of 
Housing and Urban Development).
    (iii) Authority to develop, prepare, coordinate, transmit, and 
revise transportation investment standards and criteria under 49 U.S.C. 
305 (Transportation investment standards and criteria).
    (iv) Authority relating to standard time zones and advanced 
(daylight) time (15 U.S.C. 260 et seq.).
    (2) Legislation, rulemakings, and reports. (i) Submission to the 
President, the Director of the Office of Management and Budget, or 
Congress of proposals or recommendations for legislation, significant 
rulemakings and related documents as authorized by law, Executive 
Orders, proclamations or reorganization plans, or other Presidential 
action.
    (ii) Submission to the President or Congress of any report or any 
proposed transportation policy or investment standards or criteria, 
except with the prior written approval of the Secretary.
    (iii) Submission of the annual statement on systems of internal 
accounting and administrative control under the Federal Managers' 
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
    (3) Budget and finance. (i) Approval and submission to the Office of 
Management and Budget of original or amended budget estimates or 
requests for allocations of personnel ceiling (31 U.S.C. 1108).
    (ii) Approval of requests for legislation which, if enacted, would 
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
    (iii) Transfer of the balance of an appropriation from one operating 
element to another within the Department (31 U.S.C. 581c).
    (iv) Submission to the Director of the Office of Management and 
Budget of requests for the transfer of the balance or portions of an 
appropriation from one element to another within the Department (31 
U.S.C. 665).
    (4) Personnel. (i) Recommendations to the Office of Personnel 
Management regarding the allocation of a position to the Senior 
Executive Service (SES) or Senior Level (SL), or Scientific and

[[Page 10]]

Professional Positions (ST) (5 U.S.C. 5108).
    (ii) Recommendations to the Office of Personnel Management of 
approval of the qualifications of any candidate for a position in the 
SES or SL.
    (iii) Recommendations to the Office of Personnel Management of a 
Lump-Sum Incentive Award in Excess of $10,000 (5 U.S.C. 4502).
    (iv) Approval of the following actions relating to Schedules A, B, 
C, or D (5 CFR part 213) and noncareer executive assignment positions or 
incumbents, except for actions under Schedules A and B limited to one 
year or less at grade GS-9 or lower, or an equivalent level:
    (A) Establishment or abolition of positions;
    (B) Hires;
    (C) Promotions other than quality and periodic within-grade 
promotions;
    (D) Transfer of personnel to Schedule A, B, C, or D positions or 
non-career executive assignment positions, either permanently or on 
detail; and
    (E) Transfer of personnel from Schedule A, B, C, or D or non-career 
executive assignment positions to career Civil Service positions.
    (v) Approval of employment of experts or consultants.
    (vi) Authority to determine the maximum limit of age for appointment 
of air traffic controllers as provided by 5 U.S.C. 3307(b).
    (vii) Authority to develop, coordinate, and issue wage schedules 
under the Federal Wage system.
    (5) Security. (i) Authorizing the filling of a critical-sensitive 
position for a limited period by a person on whom a preappointment full 
field investigation has not been completed (Executive Order 10450) as 
amended and Executive Order 12968 as amended by Executive Order 13467.
    (ii) Requesting Presidential approval of a claim of executive 
privilege with respect to information requested by a Congressional 
committee or Member of Congress.
    (iii) Making determinations prescribed by Executive Order 12968 as 
amended by Executive Order 13467 and 32 CFR part 147 relating to the 
adjudication and final denial of access to classified information to 
industry personnel.
    (iv) Making those determinations or delegations prescribed by 
Executive Order 13526 that are reserved to the head of the Department.
    (6) Procurement. Exercising the extraordinary authority for defense 
contracts provided for in Pub. L. 85-804 [(50 U.S.C. 1431-1435)].
    (7) Printing. Requesting approval of the Joint Committee on Printing 
for any procurement or other action requiring Committee approval.
    (8) Interagency agreements. Executing any written interdepartmental 
or interagency agreement with the head of another executive department 
or agency.
    (9) Withholding of funds. Withholding or suspension of Federal-Aid 
Highway funds on a state-wide basis and the waiver or compromise of such 
withholding or suspension, except for the administration of 23 U.S.C. 
141, 158, 159, 161, and 163 which are specifically delegated in 
Sec. Sec.  1.85 (FHWA) and 1.95 (NHTSA).
    (10) National Highway Safety Advisory Committee. Directing the 
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
    (11) Maritime Subsidy Board. Reviewing decisions, reports, orders 
and other actions of the Maritime Subsidy Board.
    (12) Cash purchases of passenger transportation. The authority under 
41 CFR 301-51.100 to authorize and approve cash purchases for emergency 
passenger transportation services costing more than $100.
    (13) Solicitation of gifts. The implied authority to solicit gifts 
associated with 49 U.S.C. 326(a).
    (14) Foreign travel. Approving official travel outside of the United 
States.
    (15) United States Merchant Marine Academy. Pursuant to 49 U.S.C. 
51303, the authority to appoint each year without competition as cadets 
at the United States Merchant Marine Academy not more than 40 qualified 
individuals with qualities the Secretary considers to be of special 
value to the Academy.
    (16) Challenges and competitions. Approving any challenge or 
competition

[[Page 11]]

administered by any office or Operating Administration of the 
Department.
    (17) Committees. Approving the establishment, modification, 
extension, or termination of all advisory committees (including industry 
advisory committees) subject to the Federal Advisory Committee Act (Pub. 
L. 92-463; 5 U.S.C. App.), and the designation of Departmental 
representatives to those committees.
    (18) Credit assistance approval. Granting final approval of 
applications for credit assistance under the Transportation 
Infrastructure Finance and Innovation Act (TIFIA), 23 U.S.C. 601-609.



Sec.  1.22  Deputy Secretary.

    Along with the Secretary, the Deputy Secretary exercises oversight 
of all of the OST components, as well as each of the Operating 
Administrations, and overall planning, direction, and control of the 
Department's agenda. The Deputy Secretary:
    (a) May exercise the authority of the Secretary, except where 
specifically limited by law, order, regulation, or instructions of the 
Secretary;
    (b) Serves as the Chief Operating Officer; and
    (c) Serves as the Chief Acquisition Officer.



Sec.  1.23  Delegations to the Deputy Secretary.

    The Deputy Secretary may exercise the authority of the Secretary, 
except where specifically limited by law, order, regulations, or 
instructions of the Secretary. In addition, the Deputy Secretary is 
delegated authority to:
    (a) Exercise executive control over Departmental Budgeting and 
Program Evaluation.
    (b) Serve as Chairman of the Departmental Executive Resources Board 
and its Executive Committee.
    (c) Serve as the Chair of the Department's Safety Council.
    (d) Serve as the Chair of the Department's Credit Council.
    (e) Approve the establishment, modification, extension, or 
termination of:
    (1) Department-wide (intra-department) committees affecting more 
than one program.
    (2) OST-sponsored interagency committees.
    (f) Approve the designation of:
    (1) Departmental representatives and the chairman for interagency 
committees sponsored by the Office of the Secretary.
    (2) Departmental members for international committees.
    (g) Serve as the representative of the Secretary on the board of 
directors of the National Railroad Passenger Corporation and carry out 
the functions vested in the Secretary as a member of the board by 49 
U.S.C. 24302.
    (h) Approve the initiation of regulatory action, as defined in 
Executive Order 12866, by Secretarial offices and Operating 
Administrations.



Sec.  1.24  Under Secretary of Transportation for Policy.

    The Under Secretary provides leadership in the Department's 
development of policies and programs to protect and enhance the safety, 
adequacy, and efficiency of the transportation system and services. The 
Office of the Under Secretary serves as the focal point within the 
Federal Government for coordination of intermodal transportation policy, 
which brings together departmental intermodal perspectives, advocates 
intermodal interests, and provides secretarial leadership and visibility 
on issues that involve or affect more than one Operating Administration.



Sec.  1.25  Delegations to the Under Secretary of Transportation for Policy.

    The Under Secretary is delegated the following authorities:
    (a) Lead the development of transportation policy and serve as the 
principal adviser to the Secretary on all transportation policy matters.
    (b) Establish policy and ensure uniform departmental implementation 
of the National Environmental Policy Act of 1969, Pub. L. 91-190, as 
amended (42 U.S.C. 4321-4347) within the Department of Transportation.
    (c) Oversee the implementation of 49 U.S.C. 303 (Policy on lands, 
wildlife and waterfowl refuges, and historic sites).
    (d) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions

[[Page 12]]

to include the Architectural and Transportation Barriers Compliance 
Board and the Advisory Council on Historic Preservation and the Trade 
Policy Review Group and the Trade Policy Staff Committee.
    (e) Serve as the Department's designated principal conservation 
officer pursuant to section 656 of the Department of Energy Organization 
Act, Pub. L. 94-91 [42 U.S.C. 7266], and carry out the functions vested 
in the Secretary by section 656 of the Act, which pertains to planning 
and implementing energy conservation matters with the Department of 
Energy.
    (f) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Order T-1 (44 CFR chapter IV) under the 
Defense Production Act of 1950, as amended, Pub. L. 81-774, 64 Stat. 798 
[50 U.S.C. App. 2061 et seq.] and Executive Order 10480, as amended (see 
also Executive Order 10773 and 12919).
    (g) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order 11382, 
as amended, serve as Chair of the Group.
    (h) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended, 
and Executive Order 12188, as amended.
    (i) As supplemented by 14 CFR part 385, and except as provided in 
Sec. Sec.  1.99(j) (RITA), and 1.27 (General Counsel) of this part, 
carry out the functions transferred to the Department from the Civil 
Aeronautics Board and other related functions and authority vested in 
the Secretary under the following:
    (1) Sections 40103(a)(2) (relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports for handicapped 
individuals), and (c) (relating to foreign aircrafts); 40105 (relating 
to international negotiations, agreements, and obligations); 40109(a), 
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the 
authority to exempt certain air carriers) and (h); 40113(a) and (c); 
40114(a) (relating to reports and records); 40115 (relating to the 
withholding of information from public disclosure) of Chapter 401 of 49 
U.S.C.; and 40116 (relating to the Anti-Head Tax Act);
    (2) The following chapters of title 49, U.S.C., except as related to 
departmental regulation of airline consumer protection and civil rights 
which is delegated to the General Counsel at Sec.  1.27:
    (i) Chapter 411 of title 49, U.S.C., relating to air carrier 
certification;
    (ii) Chapter 413 of title 49, U.S.C., relating to foreign air 
transportation;
    (iii) Chapter 415 of title 49, U.S.C., relating to pricing;
    (iv) Chapter 417 of title 49, U.S.C., relating to the operations of 
air carriers, except sections 41721-41723;
    (v) Chapter 419 of title 49, U.S.C. and 39 U.S.C. 5402, relating to 
the transportation of mail; and
    (vi) Section 42303 of 49 U.S.C., relating to the management of the 
Web site regarding the use of insecticides in passenger aircraft.
    (3) Section 42111 of title 49, U.S.C. with respect to mutual aid 
agreements as it relates to foreign air transportation;
    (4) Chapters 461 and 463 of title 49, U.S.C., relating to aviation 
investigations, proceedings, and penalties under Part A of Subtitle VII 
of title 49, U.S.C. except for those sections delegated to the General 
Counsel under Sec.  1.27, and to the Federal Aviation Administrator 
under Sec.  1.83;
    (5) Chapter 473 of title 49, U.S.C., relating to international 
airport facilities.
    (6) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21], 
relating to air carriers and foreign air carriers.
    (7) Section 3 of An Act to Encourage Travel in the United States, 
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
    (8) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of the 
Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 1607(a)(4), 
1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
    (j) Carry out the functions vested in the Secretary by 49 U.S.C. 
44907(b)(1), (c), and (e) related to the security of foreign airports in 
coordination with

[[Page 13]]

the General Counsel, the Federal Aviation Administrator, and the 
Assistant Secretary for Administration.
    (k) Carry out section 101(a)(2) of the Air Transportation Safety and 
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as 
delegated to the Secretary of Transportation by the President pursuant 
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001 
Comp., p. 911.
    (l) Exercise the authority vested in the Secretary by section 11143 
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: 
A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144 (SAFETEA-LU), to 
manage the day-to-day activities associated with implementation of 
section 11143 regarding private activity bonds and tax-exempt financing 
of highway projects and rail-truck facilities.
    (m) In coordination with the General Counsel, carry out the duties 
of the Secretary under Executive Orders 12866 and 13563 to establish the 
values of time and statistical life in connection with assessing the 
costs and benefits of Departmental regulatory action.
    (n) Carry out the functions vested in the Secretary by 49 U.S.C. 
47129, relating to resolution of disputes over the reasonableness of 
fees imposed upon air carriers.
    (o) Carry out the functions and exercise the authority vested in the 
Secretary by 23 U.S.C. 167(f) (National Freight Strategic Plan).



Sec.  1.25a  Redelegations by the Under Secretary of Transportation for Policy.

    (a) The Assistant Secretary for Transportation Policy is redelegated 
authority to:
    (1)(i) Redelegate and authorize successive redelegation of authority 
granted in this paragraph (a) to officials within the Office of the 
Assistant Secretary for Transportation Policy, except as limited by law 
or specific administrative reservation.
    (ii) Publish, in appendix A of this part, redelegations made under 
paragraph (a)(1)(i) of this section.
    (2) Establish policy and maintain oversight of implementation of the 
National Environmental Policy Act of 1969, Pub. L. 91-190, as amended 
(42 U.S.C. 4321-4347) within the Department of Transportation.
    (3) Oversee the implementation of 49 U.S.C. 303 (Policy on lands, 
wildlife and waterfowl refuges, and historic sites).
    (4) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions to include the Architectural and 
Transportation Barriers Compliance Board and the Advisory Council on 
Historic Preservation and the Trade Policy Review Group and the Trade 
Policy Staff Committee.
    (5) Serve as the Department's designated principal conservation 
officer pursuant to section 656 of the Department of Energy Organization 
Act, Pub. L. 94-91 [ 42 U.S.C. 7266], and carry out the functions vested 
in the Secretary by section 656 of the Act, which pertains to planning 
and implementing energy conservation matters with the Department of 
Energy.
    (6) Carry out the functions of section 42303 of 49 U.S.C., relating 
to the management of the Web site regarding the use of insecticides in 
passenger aircraft.
    (7) In coordination with the General Counsel, carry out the duties 
of the Secretary under Executive Orders 12866 and 13563 to establish the 
value of statistical life in connection with assessing the costs and 
benefits of Departmental regulatory action.
    (8) Carry out the duties of the Secretary under Executive Orders 
12866 and 13563 to establish the value of time in connection with 
assessing the costs and benefits of Departmental regulatory action.
    (b) The Assistant Secretary for Aviation and International Affairs 
is redelegated authority to:
    (1)(i) Redelegate and authorize successive redelegation of authority 
granted in this paragraph (b) to officials within the Office of the 
Assistant Secretary for Aviation and International Affairs, except as 
limited by law or specific administrative reservation.
    (ii) Publish, in appendix A of this part, redelegations made under 
paragraph (b)(1)(i) of this section.
    (2) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Order T-1 (44

[[Page 14]]

CFR chapter IV) under the Defense Production Act of 1950, as amended, 
Pub. L. 81-774, 64 Stat. 798 [50 U.S.C. App. 2061 et seq.] and Executive 
Order 10480, as amended (see also Executive Order 10773 and 12919).
    (3) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order 11382, 
serve as Chair of the Group.
    (4) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended, 
and Executive Order 12188.
    (5) Represent the Department of Transportation at the Trade Policy 
Committee Review Group and the Trade Policy Staff Committee, which were 
established at 15 CFR part 2002 as subordinate bodies of the Trade 
Policy Committee.
    (6) As supplemented by 14 CFR part 385, and except as provided in 
Sec. Sec.  1.99 (RITA), and 1.27 (General Counsel), carry out the 
functions transferred to the Department from the Civil Aeronautics Board 
and other related functions and authority vested in the Secretary under 
the following provisions of Title 49, U.S.C.:
    (i) Sections 40103(a)(2) (relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports for handicapped 
individuals), and (c) (relating to foreign aircrafts); 40105 (relating 
to international negotiations, agreements, and obligations); 40109(a), 
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the 
authority to exempt certain air carriers) and (h); 40113(a) and (c); 
40114(a) (relating to reports and records); 40115 (relating to the 
withholding of information from public disclosure; and 40116 (relating 
to the Anti-Head Tax Act);
    (ii) The following chapters of title 49, U.S.C., except as related 
to departmental regulation of airline consumer protection and civil 
rights which is delegated to the General Counsel at Sec.  1.27:
    (A) Chapter 411, relating to air carrier certification;
    (B) Chapter 413, relating to foreign air transportation;
    (C) Chapter 415, relating to pricing;
    (D) Chapter 417, relating to the operations of air carriers, except 
section 41721-41723;
    (E) Chapter 419, and 39 U.S.C. 5402, relating to the transportation 
of mail;
    (iii) Section 42111 of title 49, U.S.C. with respect to mutual aid 
agreements as it relates to foreign air transportation;
    (iv) Chapters 461 and 463 of title 49, U.S.C., relating to aviation 
investigations, proceedings, and penalties under Part A of 49 U.S.C. 
Subtitle VII except for those sections delegated to the General Counsel 
under Sec.  1.27, and to the Federal Aviation Administrator under Sec.  
1.83;
    (v) Chapter 473 of title 49, U.S.C., relating to international 
airport facilities.
    (vi) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21], 
relating to air carriers and foreign air carriers.
    (vii) Section 3 of An Act to Encourage Travel in the United States, 
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
    (viii) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of 
the Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 
1607(a)(4), 1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
    (7) Carry out the functions vested in the Secretary by 49 U.S.C. 
44907(b)(1), (c), and (e) related to the security of foreign airports in 
coordination with the General Counsel, the Federal Aviation 
Administrator, and the Assistant Secretary for Administration.
    (8) Carry out section 101(a)(2) of the Air Transportation Safety and 
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as 
delegated to the Secretary of Transportation by the President pursuant 
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001 
Comp., p. 911.
    (9) Carry out the functions vested in the Secretary by 49 U.S.C. 
47129, relating to resolution of disputes over the reasonableness of 
fees imposed upon air carriers.



Sec.  1.26  General Counsel.

    The General Counsel is the chief legal officer of the Department, 
legal

[[Page 15]]

advisor to the Secretary, and final authority within the Department on 
questions of law. The Office of the General Counsel provides legal 
advice to the Secretary and secretarial offices, and supervision, 
coordination, and review of the legal work of the Chief Counsel Offices 
in the Department. The General Counsel participates with each Operating 
Administrator in the performance reviews of Chief Counsel. The General 
Counsel is responsible for retention of outside counsel, and for the 
approval of the hiring and promotion of departmental attorneys (other 
than in the Federal Aviation Administration). The General Counsel is 
also responsible for departmental regulation under statutes including 
the Air Carrier Access Act, statutes prohibiting unfair and deceptive 
practices in air transportation, the Americans with Disabilities Act, 
the Disadvantaged Business Enterprise program, and the Uniform Time Act. 
The General Counsel coordinates all international legal matters, and 
departmental participation in proceedings before other federal and state 
agencies. The General Counsel provides oversight of departmental 
litigation, regulation, legislation, Freedom of Information Act 
compliance, and administrative enforcement.



Sec.  1.27  Delegations to the General Counsel.

    The General Counsel is delegated authority to:
    (a) Conduct all rulemaking proceedings under the Americans with 
Disabilities Act, the Disadvantaged Business Enterprise program, and the 
Uniform Time Act, as amended (15 U.S.C. 260 et seq.).
    (b) Determine the practicability of applying the standard time of 
any standard time zone to the movements of any common carrier engaged in 
interstate or foreign commerce and issue operating exceptions in any 
case in which the General Counsel determines that it is impractical to 
apply the standard time (49 CFR 71.1).
    (c) Issue regulations making editorial changes or corrections to the 
regulations of the Office of the Secretary.
    (d) Grant permission, under specific circumstances, to deviate from 
a policy or procedure prescribed by the regulations of the Office of the 
Secretary (49 CFR part 9) with respect to the testimony of OST employees 
as witnesses in legal proceedings, the serving of legal process and 
pleadings in legal proceedings involving the Secretary or his Office, 
and the production of records of that Office pursuant to subpoena.
    (e) Respond to petitions for rulemaking or petitions for exemptions 
in accordance with 49 CFR 5.13(c) (Processing of petitions), and notify 
petitioners of decisions in accordance with 49 CFR 5.13(d).
    (f) Provide counsel to employees on questions of conflict of 
interest covered by departmental regulations on employee responsibility 
and conduct.
    (g) Coordinate the issuance of proposed Executive Orders and 
proclamations for transmittal to the Office of Management and Budget for 
action by the White House.
    (h) Except with respect to proceedings relating to safety fitness of 
an applicant (49 U.S.C. 307), decide on requests to intervene or appear 
before courts (with the consent of the Department of Justice) or 
agencies to present the views of the Department, subject to the 
concurrence of the Secretary.
    (i) Exercise the authority delegated to the Department by the 
Assistant Attorney General, Land and Natural Resources Division, in his 
order of October 2, 1970, to approve the sufficiency of the title to 
land being acquired by purchase or condemnation by the United States for 
the use of the Department. (See also Appendix 1 relating to delegations 
to Operating Administration Chief Counsel).
    (j) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Office of the Secretary.
    (k) Compromise, suspend collection action on, or terminate claims of 
the United States that are referred to, or arise out of the activities 
of the Office of the Secretary of Transportation.
    (l) Conduct coordination with foreign governments under section 118 
of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1428).
    (m) Exercise review authority under 49 U.S.C. 41307 (related actions 
about

[[Page 16]]

foreign air transportation) delegated to the Secretary by the President 
in Executive Order 12597.
    (n) Assist and protect consumers in their dealings with the air 
transportation industry and conduct all departmental regulation of 
airline consumer protection and civil rights pursuant to chapters 401 
(General Provisions), 411 (Air Carrier Certificates), 413 (Foreign Air 
Transportation), 417 (Operations of Carriers), and 423 (Passenger Air 
Service Improvements) of title 49 U.S.C.
    (o) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b) (Security and research and development activities), as 
implemented by 49 CFR part 15 (Protection of Sensitive Security 
Information), in consultation and coordination with the Office of 
Intelligence, Security and Emergency Response.
    (p) Appear on behalf of the Department on the record in hearing 
cases, and initiate and carry out enforcement actions on behalf of the 
Department, under the authority transferred to the Department from the 
Civil Aeronautics Board as described in Sec. Sec.  1.25 and 1.25a 
(delegations to and redelegations by the Under Secretary), and 1.99 
(RITA). This includes the authority to compromise penalties under 49 
U.S.C. 46301 (civil penalties); to issue appropriate orders, including 
cease and desist orders, under 49 U.S.C. 46101 (complaints and 
investigations); and to require the production of information, under 49 
U.S.C. 41708, enter carrier property and inspect records, under 49 
U.S.C. 41709, and inquire into the management of the business of a 
carrier under 49 U.S.C. 41711 (Air carrier management inquiry and 
cooperation with other authorities), as appropriate to the enforcement 
responsibilities. In the event that such an enforcement matter comes 
before the Secretary of Transportation for adjudication, the Deputy 
General Counsel shall advise the Secretary.
    (q) Initiate and carry out enforcement actions relating to:
    (1) Foreign airport security on behalf of the Department under 49 
U.S.C. 44907; and
    (2) The Consumer Credit Protection Act under section 4(a)(5) of the 
Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-443) [15 U.S.C. 
1607(a)(4), 1681s(b)(5), 1691c(a)(5) and 1692l(b)(5)].
    (r) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public 
Availability of Information) in connection with the records of the 
Office of the Secretary and issue procedures to ensure uniform 
departmental implementation of statutes and regulations regarding public 
access to records.
    (s) Prepare reports by carriers on incidents involving animals 
during air transport pursuant to 49 U.S.C. 41721.
    (t) Exercise authority vested in the Secretary by the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 
890), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 
104-134, 110 Stat. 1321), to promulgate rules that adjust civil 
penalties with respect to aviation enforcement.
    (u) In coordination with the Under Secretary, to carry out the 
duties of the Secretary under Executive Orders 12866 and 13563 to 
establish the value of statistical life in connection with assessing the 
costs and benefits of Departmental regulatory action.
    (v) Approve the initiation of regulatory action, as defined in 
Executive Order 12866, by Secretarial offices and Operating 
Administrations in the event that the Deputy Secretary is absent or 
otherwise unavailable to exercise such authority (see Sec.  1.23(h)).
    (w) Approve requests to reclassify rulemakings as non-significant 
under DOT procedures.



Sec.  1.27a  Delegations to the Career Deputy General Counsel.

    The career Deputy General Counsel is delegated authority to:
    (a) Serve as the Department's Designated Agency Ethics Official in 
accordance with 5 CFR 2638.202;
    (b) Serve as the Department's Dispute Resolution Specialist pursuant 
to section 3(b) of the Alternative Dispute Resolution Act of 1996, Pub. 
L. 104-320, 5 U.S.C. App.; and
    (c) Serve as the Department's Chief FOIA Officer under 5 U.S.C. 
552(j).



Sec.  1.27b  Delegations to the Assistant General Counsel for General Law.

    The Assistant General Counsel for General Law is delegated authority 
to

[[Page 17]]

serve as the Department's Alternate Agency Ethics Official in accordance 
with 5 CFR 2638.202.



Sec.  1.30  Assistant Secretaries.

    (a) In performing their functions, the Assistant Secretaries are 
responsible for continuing liaison and coordination among themselves and 
with the Operating Administrations to:
    (1) Avoid unnecessary duplication of effort by or in conflict with 
the performance of similar activities by the Operating Administrations 
and the other Assistant Secretaries pursuant to their Secretarial 
delegations of authority or other legal authorities; and
    (2) Assure that the views of the Operating Administrations are 
considered in developing departmental policies, plans, and proposals. 
The Assistant Secretaries are also available to assist, as appropriate, 
the Operating Administrations in implementing departmental policy and 
programs. As primary staff advisors to the Secretary, the Assistant 
Secretaries are concerned with transportation matters of the broadest 
scope, including modal, intermodal, and other matters of Secretarial 
interest.
    (b) There are exceptions to the normal staff role described in 
paragraph (a) of this section. In selected instances, the Secretary has 
specifically delegated to Assistant Secretaries authority which they may 
exercise on the Secretary's behalf.



Sec.  1.31  Assistant Secretary for Transportation Policy.

    The Assistant Secretary for Transportation Policy provides policy 
advice to the Secretary, the Deputy Secretary, and the Under Secretary. 
The Office of the Assistant Secretary for Transportation Policy is 
responsible for: Public policy development, coordination, and evaluation 
for all aspects of transportation, except in the areas of aviation and 
international affairs, with the goal of making the Nation's 
transportation resources function as an integrated national system; 
evaluation of private transportation sector operating and economic 
issues; evaluation of public transportation sector operating and 
economic issues; regulatory and legislative initiatives and review; 
energy, environmental, disability, and safety policy and program 
development and review; and transportation infrastructure assessment and 
review. For delegations to the Assistant Secretary for Transportation 
Policy, see Sec.  1.25a(a).



Sec.  1.32  Assistant Secretary for Aviation and International Affairs.

    The Office of the Assistant Secretary for Aviation and International 
Affairs is responsible for policy development, coordination, and 
evaluation of issues involving aviation, as well as international issues 
involving all areas of transportation; private sector evaluation; 
international transportation and transport-related trade policy and 
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion; 
coordination of land transport relations with Canada and Mexico; 
economic regulation of the airline industry while placing maximum 
reliance on market forces and on actual and potential competition; the 
essential air service program and other rural air service programs; and, 
in coordination with the FAA, promotion of the aerospace industry. For 
delegations to the Assistant Secretary for Aviation and International 
Affairs, see Sec.  1.25a(b).



Sec.  1.33  Chief Financial Officer and Assistant Secretary for Budget and Programs.

    (a) The Chief Financial Officer (CFO) is the principal budget and 
financial advisor to the Secretary and serves as Assistant Secretary for 
Budget and Programs. The CFO and Assistant Secretary for Budget and 
Programs provides oversight and policy guidance for all budget, 
financial management, program performance, and internal control 
activities of the Department and its Operating Administrations.
    (b) The CFO and Assistant Secretary for Budget and Programs concurs 
in the appointment and promotion of Chief Financial Officers, Budget 
Officers, and Directors of Finance of the Department and its Operating 
Administrations, and participates with each

[[Page 18]]

Administrator in the performance reviews of Chief Financial Officers, 
Budget Officers, and Directors of Finance in each of the Operating 
Administrations.
    (c) The CFO and Assistant Secretary for Budget and Programs, in 
consultation with the Chief Information Officer, may designate any 
information technology system as a financial management system under the 
CFO's policy and oversight area of responsibility.
    (d) The CFO and Assistant Secretary for Budget and Programs serves 
as the Vice Chair of the Department's Credit Council. The Office of the 
Assistant Secretary supports the Department's Credit Council by 
analyzing applications for the Department's various credit programs. The 
CFO also oversees the TIFIA program and the TIFIA Joint Program Office 
on behalf of the Secretary, including the evaluation of individual 
projects, and provides overall policy direction and program decisions 
for the TIFIA program.
    (e) The CFO and Assistant Secretary for Budget and Programs is 
responsible for preparation, review, and presentation of Department 
budget estimates; liaison with the Office of Management and Budget and 
Congressional Budget and Appropriations Committees; preparation of the 
Department's annual financial statements; departmental financial plans, 
apportionments, reapportionments, reprogrammings, and allotments; 
program and systems evaluation and analysis; program evaluation 
criteria; program resource plans; analysis and review of legislative 
proposals and one-time reports and studies required by Congress; and 
budget and financial management relating to the Office of the Secretary.



Sec.  1.34  Delegations to the Chief Financial Officer and Assistant Secretary for Budget and Programs.

    The Chief Financial Officer and Assistant Secretary for Budget and 
Programs is delegated authority to:
    (a) Serve as the Department's Chief Financial Officer pursuant to 31 
U.S.C. 901 (Establishment of Agency Chief Financial Officers).
    (b) Exercise day-to-day operating management responsibility over the 
Office of Budget and Program Performance, the Office of the OST Chief 
Financial Officer, the Office of Financial Management, and the Office of 
Credit Oversight and Risk Management.
    (c) Direct and manage the Departmental planning, evaluation, budget, 
financial management, and internal control activities.
    (d) Exercise oversight and provide exclusive policy guidance to the 
Enterprise Services Center (ESC) regarding all financial management 
activities conducted by ESC and financial systems operated by ESC. This 
authority includes concurrence with any organizational changes within 
the Federal Aviation Administration that may affect financial management 
operations of the ESC.
    (e) Request apportionment or reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (f) Issue allotments or allocations of funds to components of the 
Department.
    (g) Authorize and approve official travel and transportation for 
staff members of the Immediate Office of the Secretary including 
authority to sign and approve related travel orders and travel vouchers, 
but not including requests for overseas travel.
    (h) Issue monetary authorizations for use of reception and 
representation funds.
    (i) Except as otherwise delegated, establish or operate or both, any 
special funds that are required by statute or administrative 
determination.
    (j) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Office of the Secretary (excluding claims pertaining 
to the Working Capital Fund), subject to the limits on that authority 
imposed by 31 U.S.C. 3711 and the Federal Claims Collection Standards, 
31 CFR chapter IX.

[[Page 19]]

    (k) Exercise the Secretary's authority under the Improper Payments 
Elimination and Recovery Act of 2010 (Pub. L. 111-204) (33 U.S.C. 3301 
note).
    (l) Exercise the Secretary's authority under the Improper Payments 
Information Act of 2002 (Pub. L. 107-300) (31 U.S.C. 3321 note).
    (m) Exercise the Secretary's authority under the Recovery Auditing 
Act (Section 831, Defense Authorization Act for FY 2002 (Pub. L. 107-
107)).
    (n) Exercise the Secretary's authority under the Federal Financial 
Management Improvement Act of 1996 (31 U.S.C. 3512 note).
    (o) Exercise the Secretary's authority under Federal Managers' 
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
    (p) Exercise the Secretary's authority under the Accounting and 
Auditing Act of 1950 (31 U.S.C. 3512), as amended by FMFIA.
    (q) Exercise the Secretary's authority under the Government 
Performance and Results Act (GPRA) (Pub. L. 103-623).
    (r) Exercise the Secretary's authority under the Accountability of 
Tax Dollars Act of 2002, 31 U.S.C. 3515.
    (s) Exercise the Secretary's authority under the Government 
Management Reform Act of 1994 (GMRA) (Pub. L. 103-356).
    (t) Exercise the Secretary's authority under 5 U.S.C. 5584 and the 
OMB memorandum, ``Determination with Respect to Transfer of Functions 
Pursuant to Public Law 104-316'' (December 17, 1996) to waive claims of 
the United States arising out of an erroneous payment to an employee of 
pay or allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims.
    (u) Serve as the Department's Performance Improvement Officer under 
31 U.S.C. 1124.



Sec.  1.35  Assistant Secretary for Governmental Affairs.

    The Assistant Secretary for Governmental Affairs serves as the 
Department's primary point of contact for Congressional offices, as well 
as State and locally elected officials; works with other departmental 
offices to ensure that Congressional mandates are fully implemented by 
the Department; and works with the White House, other Federal agencies, 
and Congress to fulfill the Department's legislative priorities. The 
Assistant Secretary coordinates congressional and intergovernmental 
activities with governmental affairs offices in the Operating 
Administrations and is the final authority on governmental affairs 
issues within the Department. The Assistant Secretary participates with 
each Administrator in the hiring decisions (other than in the Federal 
Aviation Administration) and performance reviews of all of the Operating 
Administrations' Directors of Governmental Affairs. The Assistant 
Secretary supervises the Deputy Assistant Secretary for Tribal 
Government Affairs who plans and coordinates the Department's policies 
and programs with respect to Indian tribes and tribal organizations.

[82 FR 19192, Apr. 26, 2017]



Sec.  1.36  Delegations to the Assistant Secretary for Governmental Affairs.

    The Assistant Secretary for Governmental Affairs is delegated 
authority to:
    (a) Establish procedures for responding to Congressional 
correspondence; and
    (b) Supervise the Deputy Assistant Secretary for Tribal Government 
Affairs.



Sec.  1.37  Assistant Secretary for Administration.

    The Assistant Secretary for Administration is the principal advisor 
to the Secretary and Deputy Secretary on Department-wide administrative 
matters and is the final authority on these matters within the 
Department. The Assistant Secretary for Administration serves as the 
Designated Agency Safety and Health Official. The Office of the 
Assistant Secretary for Administration's responsibilities include: 
Strategic management of human capital; monitoring the progress of 
departmental offices related to sustainability goals; controls and 
standards to ensure that procurement and financial assistance programs 
are in accord with good

[[Page 20]]

business practice; follow-up and resolution of Government Accountability 
Office and Inspector General audit reviews; information resource 
management; property management information; facilities; and security. 
The Assistant Secretary for Administration is responsible for 
recommending performance objectives for the Operating Administrations' 
Directors of Human Resources. The Assistant Secretary for Administration 
participates with each Administrator in the hiring decisions (other than 
in the Federal Aviation Administration) and performance reviews of all 
of the Operating Administrations' Associate Administrators for 
Administration.

[82 FR 19192, Apr. 26, 2017]



Sec.  1.38  Delegations to the Assistant Secretary for Administration.

    The Assistant Secretary for Administration is delegated authority 
for the following:
    (a) Acquisition. (1) Exercise procurement authority with respect to 
requirements of the Office of the Secretary or an Operating 
Administration, if requested under an agreement with that Operating 
Administration.
    (2) Make the required determinations with respect to mistakes in 
bids relative to sales of personal property conducted by the Office of 
the Secretary without power of redelegation.
    (3) Except as delegated to the National Highway Traffic Safety 
Administrator by Sec.  1.95, carry out the functions vested in the 
Secretary by section 3 of Executive Order 11912 (``Delegation of 
Authorities Relating to Energy Policy and Conservation''), as amended.
    (4) Carry out the functions delegated to the Secretary from time to 
time by the Administrator of General Services to lease real property for 
Department use.
    (5) Carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation. This authority as agency head for departmental procurement 
excludes duties, responsibilities, and powers expressly reserved for the 
Secretary of Transportation.
    (6) Serve as Deputy Chief Acquisition Officer.
    (7) Provide departmental guidance on grants, cooperative agreements, 
and other financial assistance transactions, but not including loans, 
loan guarantees, interest subsidies, or insurance.
    (8) Issue departmental procurement regulations, subject to 
coordination with the General Counsel and interested Operating 
Administrations. In commenting upon proposed provisions for the 
procurement regulations, the Operating Administrations will indicate the 
nature and purpose of any additional implementing or supplementing 
policy guidance which they propose to issue at the Operating 
Administration level.
    (b) Personnel. (1) Conduct a personnel management program for the 
Office of the Secretary of Transportation, with authority to take, 
direct others to take, recommend or approve any personnel action with 
respect to such authority.
    (2) Serve as Vice Chair of the Departmental Executive Resources 
Board.
    (3) Exercise emergency authority to hire without the prior approval 
of the Deputy Secretary normally required by departmental procedures 
implementing general employment limitations when in the judgment of the 
Assistant Secretary immediate action is necessary to effect the hire and 
avoid the loss of a well-qualified job applicant, and for similar 
reasons.
    (4) Review proposals of the Office of the Secretary for each new 
appointment or transfer to verify the essentiality of the position.
    (5) Approve employment of experts and consultants in accordance with 
5 U.S.C. 3109.
    (6) Provide policy and overall direction in the execution of the DOT 
Labor-Management Relations Program.
    (7) Develop and operate the Federal Employee Workplace Drug and 
Alcohol Testing Program in accordance with Executive Order 12564 and The 
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, 
Title V.
    (8) Serve as the Chief Human Capital Officer:
    (i) Oversee, direct, and execute all authorities included in the 
Chief

[[Page 21]]

Human Capital Officers Act of 2002 (5 U.S.C. 1401 et seq.); and
    (ii) Advise the Secretary on the Department's human capital needs 
and obligations, and implement all related rules and regulations of the 
President and the Office of Personnel Management, and all laws governing 
human resource management.
    (9) Serve as the Telework Managing Officer under 5 U.S.C. 6505.
    (c) Sustainability. (1) Responsible for ensuring that the Department 
meets its sustainability goals pursuant to the Energy Independence and 
Security Act (EISA) of 2007 (Pub. L. 110-140); the Energy Policy Act of 
2005 (Pub. L. 109-58); and Executive Order 13693 (``Planning for Federal 
Sustainability in the Next Decade'').
    (2) Serve as the Chief Sustainability Officer under Executive Order 
13693.
    (d) Finance. (1) Settle and pay claims by employees of the Office of 
the Secretary for personal property losses as provided by 31 U.S.C. 
3721.
    (2) Oversee the Working Capital Fund for the Office of the 
Secretary, established by 49 U.S.C. 327.
    (3) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of the Working Capital Fund, subject to the limits on that 
authority imposed by 31 U.S.C. 3711 and the Federal Claims Collection 
Standards, 31 CFR chapter IX.
    (e) Security. (1) Serves as the agency representative appointed by 
the Secretary of Transportation to participate on the Interagency 
Security Committee in accordance with Executive Order 12977, to 
establish policies for the security in and protection of Federal 
facilities.
    (2) Represents the department on the White House Communications 
Agency Principal Communications Working Group and the Department of 
State Overseas Security Policy Board.
    (3) Conducts an internal security management program for the 
Department of Transportation with authority to take, direct others to 
take, recommend, or approve security actions with respect to such 
authorities related to personnel security, physical security, technical 
security, and classified and sensitive information management.
    (4) Issues identification media as directed by Homeland Security 
Presidential Directive 12, ``Policy for Common Identification Standard 
for Federal Employees and Contractors'' and other identification media 
(including credentials, passports and visas) by direction of the 
Secretary.
    (5) Manages the Department's classified information program as 
directed by Executive Order 13526 (``Classified National Security 
Information'').
    (6) Takes certain classified actions on behalf of the Department in 
connection with technical counter-surveillance programs as required by 
Executive Order 13526 (``Classified National Security Information'').
    (7) In conjunction with the Office of Security, Intelligence and 
Emergency Response, and the Office of the General Counsel, carries out 
the functions vested in the Secretary by 49 U.S.C. 40119(b), as 
implemented by 49 CFR part 15, related to the protection of information 
designated as Sensitive Security Information.
    (8) Ensure Department-wide compliance with Executive Orders 12968 as 
amended, 13467, 13488, 13526, 13556, and related regulations and 
issuances.
    (f) Printing. Request approval of the Joint Committee on Printing, 
Congress of the United States, for any procurement or other action 
requiring Committee approval.
    (g) Hearings. Provide logistical and administrative support to the 
Department's Office of Hearings.
    (h) Federal real property management. Carry out the functions 
assigned to the Secretary with respect to Executive Order 13327, as 
amended.
    (i) The Uniform Act. Carry out the functions vested in the Secretary 
to implement the Uniform Relocation Assistance and Real Property 
Acquisition Act of 1970 (Uniform Act), 42 U.S.C. Chapter 61, with 
respect to programs administered by the Office of the Secretary. The 
Assistant Secretary may prescribe additional Uniform Act guidance that 
is appropriate to those particular programs, provided that such 
additional guidance must be consistent with the Uniform Act and 49 CFR 
part

[[Page 22]]

24. The lead agency for Uniform Act matters is the Federal Highway 
Administration (see Sec.  1.85 and 49 CFR part 24).
    (j) Designated Agency Safety and Health Official. Serve as the 
Designated Agency Safety and Health Official under 29 CFR 1960.6(a) to 
represent the interest of, and support, the Department's occupational 
safety and health program.
    (k) Senior Real Property Officer. Serve as the Senior Real Property 
Officer for the Department pursuant to Executive Order 13327 (``Federal 
Real Property Asset Management'') (as amended), and chair the 
Departmental Real Property Planning Council.
    (l) Transportation fringe benefits. (1) Oversee the Department's 
transportation fringe benefit program under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (2) Consult with and provide guidance to other Federal agencies on 
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (3) Establish and maintain uniform Federal Government standards for 
developing and supporting Federal agencies' transportation fringe 
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).



Sec.  1.38a  Redelegations by the Assistant Secretary for Administration.

    (a) The Director, Office of the Senior Procurement Executive is 
redelegated the authority to:
    (1) Carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation except for those duties expressly reserved for the Secretary 
of Transportation.
    (2) Carry out the functions of the Chief Acquisition Officer (CAO) 
except for those functions specifically reserved for the Deputy 
Secretary. In carrying out these functions and in support of 
requirements under Services Acquisition Reform Act (SARA), enacted as 
part of the National Defense Authorization Act for 2004--Public Law 108-
136, the Senior Procurement Executive (SPE) is expected to interact 
directly, and without intervening authority, with the CAO on issues 
related to strategic acquisition policy, implementation, and management. 
The nature and frequency of interactions with the CAO will be determined 
mutually between the SPE and the CAO.
    (3) Procure and authorize payment for property and services for the 
Office of the Secretary, with power to re-delegate and authorize 
successive re-delegations.
    (b) The Director of Human Resources Management is redelegated the 
authority to:
    (1) Develop departmental human capital policies and objectives, and 
monitor and oversee the implementation of those policies.
    (2) Establish departmental human capital performance objectives and 
metrics.
    (3) Conduct a personnel management program for the Office of the 
Secretary with authority to take, direct others to take, recommend or 
approve any personnel action with respect to such authority.
    (4) Concur in the appointment and promotion of all Human Resources 
(HR) Directors in each Operating Administration and participate in the 
performance reviews of HR Directors.
    (5) Provide policy and overall direction in the execution of the DOT 
Labor-Management Relations Program.
    (6) Develop and operate the Federal Employee Workplace Drug and 
Alcohol Testing Program in accordance with Executive Order 12564 and The 
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, 
Title V.
    (7) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System.
    (c) The Director of Financial Management within the Office of the 
Assistant Secretary for Administration is redelegated the authority to:
    (1) Settle and pay claims by Working Capital Fund employees for 
personal property losses as provided by 31 U.S.C. 3721 if the amount of 
the payment does not exceed $500.
    (d) The Director, Transit Benefit Program is redelegated the 
authority to:
    (1) Oversee the Department's transportation fringe benefit program 
under 5 U.S.C. 7905 and 26 U.S.C. 132(f).

[[Page 23]]

    (2) Consult with and provide guidance to other Federal agencies on 
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (3) Establish and maintain uniform Federal Government standards for 
developing and supporting Federal agencies' transportation fringe 
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).



Sec.  1.39  Executive Secretariat.

    The Executive Secretariat provides organized staff services to the 
Secretary and Deputy Secretary to assist them in carrying out their 
management functions and their responsibilities for formulating, 
coordinating and communicating major policy decisions. The Office 
controls and coordinates internal and external material directed to the 
Secretary and Deputy Secretary and ensures that their decisions and 
instructions are implemented.



Sec.  1.40  Departmental Office of Civil Rights.

    The Departmental Office of Civil Rights serves as the Department's 
Equal Employment Opportunity (EEO) Officer and Title VI Coordinator. The 
Director also serves as principal advisor to the Secretary and the 
Deputy Secretary on the civil rights and nondiscrimination statutes, 
regulations, and Executive Orders applicable to the Department, 
including titles VI and VII of the Civil Rights Act of 1964, as amended, 
the Age Discrimination in Employment Act of 1967, as amended, the Age 
Discrimination Act of 1975, as amended, section 504 of the 
Rehabilitation Act of 1973, as amended, the Americans with Disabilities 
Act of 1990, the Equal Pay Act of 1963, the ADA Amendments Act of 2008, 
and the Genetic Information Nondiscrimination Act of 2008. The 
Departmental Office of Civil Rights provides guidance to the Operating 
Administrations and Secretarial officers on these matters. The Office 
periodically reviews and evaluates the civil rights programs of the 
Operating Administrations to ensure that recipients of financial 
assistance meet applicable Federal civil rights requirements.



Sec.  1.41  Delegations to the Director of the Departmental Office of Civil Rights.

    The Director of the Departmental Office of Civil Rights is delegated 
authority to conduct all stages of the formal employment discrimination 
complaints process (including acceptance/dismissal, investigation, and 
final adjudication); to provide guidance to the Operating 
Administrations and Secretarial officers concerning the implementation 
and enforcement of all civil rights laws, regulations and Executive 
Orders for which the Department is responsible; to otherwise perform 
activities to ensure compliance with external civil rights programs; and 
to review and evaluate the Operating Administrations' enforcement of 
these authorities. These authorities include:
    (a) Title VI and VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000d et seq. and 2000e et seq.
    (b) Sections 501 and 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 791 and 794-794a.
    (c) Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et 
seq.
    (d) Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq.
    (e) Americans with Disabilities Act of 1990, 42 U.S.C. 12101-121213.
    (f) ADA Amendments Act of 2008 (Pub. L. 110-325) [42 U.S.C. 12101 
Note].
    (g) Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 
2000ff et seq.
    (h) Equal Pay Act of 1963, 29 U.S.C. 206(d).
    (i) Alcohol, Drug Abuse, and Mental Health Administration 
Reorganization Act (Pub. L. 102-321)
    (j) Chapter XIV of subtitle B, of title 29 of the CFR (Equal 
Employment Opportunity Commission Regulations).
    (k) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-284) [42 
U.S.C. 3601 et seq.].
    (l) 40 U.S.C. 476 (prohibition on sex discrimination).
    (m) Title IX of the Education Amendments of 1972, 20 U.S.C. 1681.
    (n) In coordination with the Assistant Secretary for Transportation 
Policy, Executive Order 12898 (``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-

[[Page 24]]

Income Populations'') (See also Executive Order 12948).
    (o) 49 U.S.C. 306 (prohibition on discrimination in programs 
receiving financial assistance), 5310 (transportation for elderly 
persons and persons with disabilities), 5332 (nondiscrimination in mass 
transportation), 41705 (discrimination by air carriers against 
handicapped persons), 47113 (minority and disadvantaged business 
participation), and 47123 (nondiscrimination in airport improvement 
programs).
    (p) 23 U.S.C. 324 and 402(b)(1)(D) (nondiscrimination in highway 
programs).
    (q) The Intermodal Surface Transportation Efficiency Act of 1991, 
Public Law 102-240, 105 Stat. 1919, section 1003.



Sec.  1.42  Office of Small and Disadvantaged Business Utilization.

    The Director of the Office of Small and Disadvantaged Business 
Utilization ensures that the Department's small and disadvantaged 
business policies and programs are developed in a fair, efficient, and 
effective manner. The Office is responsible for the Department's 
implementation and execution of the functions and duties under the Small 
Business Act, and providing opportunities, technical assistance, and 
financial services to the small and disadvantaged business community.



Sec.  1.43  Delegations to the Director of the Office of Small and Disadvantaged Business Utilization.

    The Director of Small and Disadvantaged Business Utilization is 
delegated authority to:
    (a) Exercise departmental responsibility for the implementation and 
execution of functions and duties under sections 2[8] and 2[15] of the 
Small Business Act (Pub. L. 85-836) [15 U.S.C. 637 and 644].
    (b) Carry out the functions vested in the Secretary by 49 U.S.C. 332 
(Minority Resource Center).



Sec.  1.44  Office of Intelligence, Security and Emergency Response.

    The Director of the Office of Intelligence, Security and Emergency 
Response is responsible for the development, coordination, and execution 
of plans and procedures for the Department to balance transportation 
security requirements with the safety, mobility and economic needs of 
the Nation through effective intelligence, security, preparedness and 
emergency response programs. The Director is the Department's principal 
Emergency Coordinator for the implementation of these programs.



Sec.  1.45  Delegations to the Director of the Office of Intelligence, Security and Emergency Response.

    The Director of Intelligence, Security, and Emergency Response is 
delegated authority to:
    (a) Carry out the functions related to emergency preparedness and 
response vested in the Secretary by the following authorities: 49 U.S.C. 
101 and 301; Executive Order 12148, as amended (``Federal Emergency 
Management''); Executive Order 12656 (``Assignment of Emergency 
Preparedness Responsibilities'') (as amended; see Executive Order 
13286); Executive Order 12742 (``National Security Industrial 
Responsiveness''); Executive Order 13434 (``National Security 
Professional Development''); Reorganization Plan No. 3 of 1978 (5 U.S.C. 
app at 235 (2012); and such other statutes, executive orders, and other 
directives as may pertain to emergency preparedness and response.
    (b) Serve as the Department's Continuity Coordinator in accordance 
with National Security Presidential Directive 51/Homeland Security 
Presidential Directive 20, National Continuity Policy, and Federal 
Continuity Directives (FCD) 1 Federal Executive Branch National 
Continuity Program and Requirements and FCD 2 Federal Executive Branch 
Mission Essential Function and Primary Mission Essential Function 
Identification and Submission Process. Provide leadership for 
departmental programs pertaining to intelligence related to the 
transportation sector, transportation security policy, and civil 
transportation emergency preparedness and response activities.
    (c) Lead departmental collaboration efforts with the Department of 
Homeland Security and other Departments and Agencies related to 
transportation security and transportation infrastructure protection as 
required by Homeland Security Presidential Directive 7,

[[Page 25]]

Critical Infrastructure Identification, Prioritization, and Protection.
    (d) Together with the Assistant Secretary for Administration, carry 
out oversight and management of the duties pertaining to national 
security professional development assigned to the Secretary under 
Executive Order 13434 (``National Security Professional Development'').
    (e) Together with the Office of the Assistant Secretary for Aviation 
and International Affairs, coordinate the Department's responsibilities 
under National Security Presidential Directive 44, Management of 
Interagency Efforts Concerning Reconstruction and Stabilization, and 
Presidential Decision Directive 56, Managing Complex Contingency 
Operations, pertaining to interagency reconstruction and stabilization 
assistance.
    (f) Lead departmental efforts pertaining to transportation-related 
international civil emergency preparedness activities, including 
coordinating DOT representation on North Atlantic Treaty Organization 
committees, as directed under Executive Order 12656 (as amended; see 
Executive Order 13286).
    (g) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, in consultation and 
coordination with the General Counsel.
    (h) Oversee the Department's protective service program.
    (i) Serve as the Secretary's representative to the Transportation 
Security Oversight Board, in accordance with 49 U.S.C. 115, when so 
designated.
    (j) Lead Departmental participation in internal and interagency 
planning efforts related to preparedness in accordance with Presidential 
Policy Directive 8, National Preparedness, in coordination with the 
Under Secretary.
    (k) Serve as the Secretary's senior advisor on matters pertaining to 
public health, biological, and medical matters.
    (l) Develop departmental plans to support the Department of Defense 
Civil Reserve Air Fleet (CRAF) program and allocate civil air carrier 
aircraft to CRAF based on Department of Defense requirements.
    (m) Oversee operation of the Department's Crisis Management Center.
    (n) Lead departmental efforts for all interaction with the Program 
Manager, Information Sharing Environment to include appointing the 
Associate Director for Intelligence as the DOT Information Sharing 
Program Manager to coordinate day-to-day Information Sharing Environment 
matters.
    (o) Carry out departmental responsibilities under Executive Order 
13587 (``Structural Reforms to Improve the Security of Classified 
Networks and the Responsible Sharing and Safeguarding of Classified 
Information'') including overseeing classified information sharing and 
safeguarding efforts for DOT. Oversee the day-to-day activities for 
monitoring the Top Secret and Secret classified network used by DOT and 
function as the Senior Official principally responsible for establishing 
and implementing the DOT Insider Threat Program.
    (p) Serve as the department's program manager responsible for 
oversight of all intelligence programs, to include the DOT 
Counterintelligence effort as it pertains to the DOT classified 
networks, and coordinate intelligence matters throughout the department. 
Nothing in this provision is intended to prohibit or limit a component's 
ability to conduct intelligence activities authorized by law.
    (q) Carry out the functions under the Defense Production Act of 
1950, Public Law 81-774, 64 Stat. 798, as amended (50 U.S.C. app. 2061 
et seq.), that were vested in the Secretary by Executive Order 13603 
(``National Defense Resources Preparedness'').



Sec.  1.46  Office of Public Affairs.

    The Director of Public Affairs is the principal advisor to the 
Secretary and Secretarial Officers on public affairs issues and the 
final authority on public affairs issues within the Department. The 
Office of Public Affairs prepares news releases and supporting media 
materials, and maintains a new media presence. The Office also provides 
information to the Secretary on opinions and reactions of the public and 
news media on programs and transportation issues. The Office of Public 
Affairs is responsible for the supervision, coordination, and review of 
the activities of

[[Page 26]]

the public affairs offices within the Operating Administrations. The 
Director of Public Affairs participates with each Administrator in the 
hiring decisions (other than in the Federal Aviation Administration) and 
performance reviews of all of the Operating Administrations' Directors 
of Public Affairs.

[82 FR 19193, Apr. 26, 2017]



Sec.  1.47  Delegations to the Assistant to the Secretary and Director of Public Affairs.

    The Assistant to the Secretary and Director of Public Affairs is 
delegated authority to:
    (a) Monitor the overall public information program and review and 
approve departmental informational materials having policy-making 
ramifications before they are printed and disseminated.
    (b) Carry out the functions to promote carpooling and vanpooling 
transferred to the Department of Transportation by section 310 of the 
Department of Energy Organization Act of 1977 (Pub. L. 95-91) [42 U.S.C. 
7159].



Sec.  1.48  Office of the Chief Information Officer.

    The Chief Information Officer (CIO) is the principal information 
technology (IT), cyber security, privacy, and records management advisor 
to the Secretary, and is the final authority on these matters within the 
Department. The Office of the CIO supports the Organizational Excellence 
Strategic Goal by providing leadership on all matters associated with 
the Department's IT portfolio. The CIO participates with each 
Administrator in the hiring decisions and performance reviews of the 
Operating Administrations' CIOs.

[82 FR 19193, Apr. 26, 2017]



Sec.  1.49  Delegations to the Chief Information Officer.

    The Chief Information Officer is delegated authority to:
    (a) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506);
    (b) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 11312 
to 11314, and 11317);
    (c) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the E-Government Act of 2002, Public Law 107-
347;
    (d) Carry out all functions and responsibilities necessary to ensure 
compliance with the Federal Information Security Management Act of 2002 
(44 U.S.C. 3534 and 3544);
    (e) Serve as the Chief Privacy Officer, 42 U.S.C. 2000ee-2, and 
administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR part 10 
(Maintenance of and Access to Records Pertaining to Individuals) in 
connection with the records of the Office of the Secretary;
    (f) Carry out all functions and responsibilities necessary to issue 
notices of Department of Transportation systems of records as required 
by the Privacy Act;
    (g) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Federal Records Act (44 U.S.C. 3101-3102) 
and necessary to ensure compliance with the regulations of the National 
Archives and Records Administration (36 CFR parts 1220 through 1299; 44 
U.S.C. Chapters 21, 29, 31, and 33), in coordination with the General 
Counsel; and
    (h) Serve as the Senior Agency Official for Geospatial Information 
under Office of Management and Budget Memorandum M-06-07, ``Designation 
of a Senior Agency Official for Geospatial Information'' (March 3, 
2006).



Sec.  1.50  Office of Drug & Alcohol Policy & Compliance.

    The Office of Drug & Alcohol Policy & Compliance advises the 
Secretary on national and international drug testing and control issues 
and is the principal advisor to the Secretary on rules related to the 
drug and alcohol testing of safety-sensitive transportation employees in 
aviation, trucking, railroads, mass transit, pipelines, and other 
transportation industries. The Office, in coordination with the Office 
of the General Counsel, publishes and provides interpretations of rules 
related to 49 CFR part 40 on the conduct of drug and alcohol tests, 
including how to conduct tests, and which procedures to use when 
testing. The Office

[[Page 27]]

coordinates with Federal Agencies and assists foreign governments in 
developing drug and alcohol testing programs and implementing the 
President's National Drug Control Strategy.



Sec.  1.60  General Authorizations and Delegations to Secretarial Officers.

    (a) Acting in his or her own name and title, the Under Secretary, 
the General Counsel, and each Assistant Secretary, within his or her 
sphere of responsibility, is authorized to identify and define the 
requirements for, and to recommend to the Secretary, new or revised 
departmental policies, plans, and proposals. Each of these officers is 
authorized to issue departmental standards, criteria, systems and 
procedures that are consistent with applicable laws, Executive Orders, 
Government-wide regulations and policies established by the Secretary, 
and to inspect, review, and evaluate departmental program performance 
and effectiveness and advise the Secretary regarding the adequacy 
thereof.
    (b) Except for nondelegable statutory duties including those that 
transfer as a result of succession to act as Secretary of 
Transportation, each Deputy Assistant Secretary and Deputy General 
Counsel is authorized to act for and perform the duties of his or her 
principal in the absence or disability of the principal and as otherwise 
directed by the principal.
    (c) The Deputy Secretary, the Under Secretary, the General Counsel, 
and the Assistant Secretaries for Administration, Budget and Programs, 
and Governmental Affairs are delegated authority to:
    (1) Redelegate and authorize successive redelegations of authority 
granted by the Secretary within their respective organizations, except 
as limited by law or specific administrative reservation, including 
authority to publish those redelegations in appendix A of this part.
    (2) Authorize and approve official travel (except foreign travel) 
and transportation for themselves, their subordinates, and others 
performing services for, or in cooperation with, the Office of the 
Secretary.
    (3) Establish ad hoc committees for specific tasks within their 
assigned staff area.
    (4) Establish, modify, extend, or terminate standing committees 
within their specific areas of responsibility when directed or 
authorized to do so by the Secretary.
    (5) Designate members of interagency committees when such committees 
are specifically concerned with responsibilities of direct interest to 
their office.
    (6) Exercise the following authorities with respect to positions in 
the Senior Executive Service and Senior Level within their respective 
areas of responsibility:
    (i) Determine how executive level positions will be filled; i.e., by 
reassignment, promotion, or appointment.
    (ii) Establish selection criteria to be used in identifying eligible 
candidates.
    (iii) Confer with the Administrators on selection criteria and 
candidates for an executive level position that is a counterpart of an 
activity or position in the Office of the Secretary.
    (iv) Recommend final selection for executive level positions, 
subject to review by the Executive Committee of the Departmental 
Executive Resources Board and approval by the Secretary and the Office 
of Personnel Management.
    (7) Enter into inter- and intra-departmental reimbursable agreements 
other than with the head of another department or agency (31 U.S.C. 
686). This authority may be redelegated only to office directors or 
other comparable levels and to contracting officers.
    (8) Administer and perform the functions described in their 
respective functional statements.
    (9) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (Pub. 
L. 96-354) with regard to any rulemaking document for which issuance 
authority is delegated by other sections in this part. This authority 
may be redelegated to those officials to whom document issuance 
authority has been redelegated.
    (10) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations

[[Page 28]]

through Equal Employment Opportunity counseling or the Alternative 
Dispute Resolution process and to develop and implement affirmative 
action and diversity plans within their respective organizations.
    (11) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the 
Designated Agency Ethics Official, the following: Gifts of property 
(other than real property) not exceeding $1,000 in value, gifts of 
services (in carrying out aviation duties and powers) not exceeding 
$1,000 in value, and reimbursement of travel expenses from non-federal 
sources not exceeding $3,000 in value. Acceptance of gifts or travel 
reimbursement that exceed these limits in value or are otherwise 
significant may only take place with the additional concurrence of the 
General Counsel. This delegation extends only to the acceptance of gifts 
or travel expenses and does not authorize the solicitation of gifts, 
which is reserved to the Secretary at Sec.  1.21.



                  Subpart C_Office of Inspector General



Sec.  1.70  Overview.

    This subpart describes the key responsibilities of the Office of 
Inspector General, the structure of the office, and the authority of the 
Inspector General.



Sec.  1.71  Key responsibilities.

    The Inspector General conducts, supervises, and coordinates audits 
and investigations; reviews existing and proposed legislation and makes 
recommendations to the Secretary and Congress concerning their effect on 
the economy and efficiency of program administration, or the prevention 
and detection of fraud and abuse; recommends policies for and conducts, 
supervises, or coordinates other activities of the Department for the 
purpose of promoting economy and efficiency in program administration, 
or preventing and detecting fraud and abuse; and keeps the Secretary and 
the Congress fully and currently informed.



Sec.  1.72  Structure.

    This Office is composed of:
    (a) The Office of the Deputy Inspector General;
    (b) The Office of the Principal Assistant Inspector General for 
Investigations;
    (c) The Office of the Principal Assistant Inspector General for 
Auditing and Evaluation;
    (d) The Office of the Assistant Inspector General for 
Administration; and
    (e) The Office of the Assistant Inspector General for Legal, 
Legislative and External Affairs.



Sec.  1.73  Authority of Inspector General.

    The Inspector General shall report to and be under the general 
supervision of the Secretary and Deputy Secretary. The Inspector General 
has such authority as is provided by the Inspector General Act of 1978, 
as amended, and as is otherwise provided by law. Authorities provided to 
the Inspector General by law are reserved to the Inspector General. In 
accordance with the statutory intent of the Inspector General Act to 
create an independent and objective unit, the Inspector General is 
authorized to make such investigations and reports relating to the 
administration of the programs and operations of the Department as are, 
in the judgment of the Inspector General, necessary and desirable. 
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit 
the Inspector General from initiating, carrying out, or completing any 
audit or investigation, or from issuing any subpoena during the course 
of any audit or investigation.



Sec.  1.74  Delegations to Inspector General.

    The Inspector General is delegated authority to:
    (a) Redelegate and authorize successive redelegations of authority 
granted by the Secretary within the Office of Inspector General, except 
as limited by law or specific administrative reservation.
    (b) Authorize and approve official travel, including foreign travel 
and transportation for themselves, their subordinates, and others 
performing services for, or in cooperation with, the Office of Inspector 
General.
    (c) Exercise the authority of the Secretary to resolve informal 
allegations

[[Page 29]]

of discrimination arising in or relating to the Office of Inspector 
General through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans.
    (d) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) to accept gifts of property (other than real property) or 
services (in carrying out aviation duties and powers), and the authority 
to accept travel reimbursements from non-federal sources under 31 U.S.C. 
1353.
    (e) Exercise the implied authority to solicit gifts associated with 
49 U.S.C. 326(a), notwithstanding the reservation of authority to the 
Secretary in Sec.  1.21.
    (f) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656 (as amended; see Executive Order 
13286) and by the Federal Emergency Management Agency and General 
Services Administration (FEMA and GSA) as they pertain to the Office of 
Inspector General, including those relating to continuity of operations, 
emergency resource management, and training.
    (g) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees and members within the 
Office of Inspector General and collect repayments accordingly, as 
provided by 5 U.S.C. 5514.
    (h) Waive claims of the United States arising out of an erroneous 
payment to an employee of the Office of Inspector General of pay or 
allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims, as authorized 
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to 
Transfer of Functions Pursuant to Public Law 104-316'' (December 17, 
1996). But for claims arising from erroneous payments to current 
employees, this delegation of authority is limited to claims greater 
than $500. For claims arising from erroneous payments to former 
employees, this delegation of authority is not limited by claim amount. 
Redelegation of this authority may be made only to the principal 
officials responsible for financial management or such officials' 
principal assistants.
    (i) Settle and pay claims by employees of the Office of Inspector 
General for personal property losses as provided by 31 U.S.C. 3721 
(Claims of personnel of agencies and the District of Columbia government 
for personal property damage or loss).
    (j) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (k) [Reserved]
    (l) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Office of Inspector General, subject to the limits on 
that authority imposed by 31 U.S.C. 3711 and the Federal Claims 
Collection Standards, 31 CFR chapter IX.
    (m) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Office of Inspector General. The 
Inspector General may request the approval of the Attorney General to 
adjust, compromise, and settle any such claim if the amount of the 
adjustment, compromise, or award exceeds $100,000, but only after the 
General Counsel concurs with the request. If the Inspector General 
believes that a pending claim presents a novel question of law or of 
policy, he or she shall coordinate with the General Counsel to obtain 
the advice of the Assistant Attorney General in charge of the Civil 
Division. If the Inspector General settles a claim for an amount greater 
than $50,000, the Inspector General shall prepare a memorandum fully 
explaining the basis for the action taken and coordinate with the 
General Counsel before sending a copy of the memorandum to the Director, 
Federal Torts Claims Act Staff, Torts Branch of the Civil Division, U.S. 
Department of Justice.
    (n) Make written requests under subsection (b)(7) of the Privacy Act 
of 1974, 5 U.S.C. 552a(b)(7), for records maintained by other agencies 
that are necessary to carry out an authorized law enforcement activity.

[[Page 30]]

    (o) Administer the Freedom of Information Act, 5 U.S.C. 552, and 49 
CFR part 7 (Public Availability of Information) in connection with the 
records of the Office of the Inspector General.
    (p) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR 
part 10 (Maintenance of and Access to Records Pertaining to Individuals) 
in connection with the records of the Office of the Inspector General.
    (q) Exercise the authority of the Secretary over and with respect to 
any personnel within the Office of Inspector General, except as 
prescribed by the Secretary or limited by law.
    (r) Approve payment of recruitment, relocation, and retention 
incentives under 5 U.S.C. 5753 and 5754.
    (s) Administer 49 CFR part 9 (Testimony of Employees of the 
Department and Production of Records in Legal Proceedings) in connection 
with the records of the Office of Inspector General and testimony of 
current and former employees of the Office of Inspector General.



                   Subpart D_Operating Administrations



Sec.  1.80  Overview.

    This subpart sets forth the key responsibilities of the Operating 
Administrations, and the delegations of authority from the Secretary of 
Transportation to the Administrators.



Sec.  1.81  Delegations to all Administrators.

    (a) Except as prescribed by the Secretary of Transportation, each 
Administrator is authorized to:
    (1) Exercise the authority of the Secretary over and with respect to 
any personnel within their respective organizations.
    (2) [Reserved]
    (3) Exercise the authority vested in the Secretary to prescribe 
regulations under 49 U.S.C. 322(a) with respect to statutory provisions 
for which authority is delegated by other sections in this part.
    (4) Carry out the functions of the Secretary concerning 
environmental enhancement by 49 U.S.C. 303 (Duties of the Secretary of 
Transportation: Policy on lands, wildlife and waterfowl refuges, and 
historic sites) and 23 U.S.C. 138 as they relate to matters within the 
primary responsibility of each Operating Administration.
    (5) Carry out the functions of the Secretary under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), section 
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), and related 
environmental laws as they relate to matters within the primary 
responsibility of each Operating Administration.
    (6) Carry out the functions of the Secretary under section 106 of 
the Historic Preservation Act of 1966, 16 U.S.C. 470f, as they relate to 
matters within the primary responsibility of each Operating 
Administration.
    (7) Administer FOIA and 49 CFR part 7 (Public Availability of 
Information) in connection with the records of the Operating 
Administration.
    (8) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR 
part 10 (Maintenance of and Access to Records Pertaining to Individuals) 
in connection with the records of the Operating Administration.
    (9) Make written requests under subsection (b)(7) of the Privacy Act 
for records maintained by other agencies that are necessary to carry out 
an authorized law enforcement activity.
    (10) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656, (as amended; see Executive Order 
13286) and by the Federal Emergency Management Agency and General 
Services Administration (FEMA and GSA) as they pertain to his or her 
administration, including those relating to continuity of operations, 
emergency resource management, associated Federal claimant procedures, 
facilities protection and warfare effects monitoring and reporting, 
research, stockpiling, financial aid, and training.
    (11) Enter into inter- and intradepartmental reimbursable agreements 
other than with the head of another department or agency. This authority 
may be redelegated only to Office Directors, Regional Directors, 
District Commanders or other comparable levels and Contracting Officers.

[[Page 31]]

    (12) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees within their respective 
administrations and collect repayments accordingly, as provided by 5 
U.S.C. 5514. Redelegation of this authority may be made only to the 
principal officials responsible for financial management or such 
officials' principal assistants.
    (13) Waive claims of the United States arising out of an erroneous 
payment to an employee of the Operating Administration of pay or 
allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims, as authorized 
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to 
Transfer of Functions Pursuant to Public Law 104-316'' (December 17, 
1996). But for claims arising from erroneous payments to current 
employees, this delegation of authority is limited to claims greater 
than $500. For claims arising from erroneous payments to former 
employees, this delegation of authority is not limited by claim amount. 
Redelegation of this authority may be made only to the principal 
officials responsible for financial management or such officials' 
principal assistants.
    (14) Settle and pay claims by employees of the Operating 
Administration for personal property losses as provided by 31 U.S.C. 
3721 (Claims of personnel of agencies and the District of Columbia 
government for personal property damage or loss). This authority may be 
redelegated only to Office Directors, Regional Directors, or other 
comparable levels and to those individuals that report to the above 
officials.
    (15) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans within their respective 
organizations. With regard to external civil rights programs, each 
Administrator exercises authority pursuant to statutes, regulations, 
Executive Orders, or delegations in this subpart to carry out these 
programs, under the guidance of the Director of the Departmental Office 
of Civil Rights, including conducting compliance reviews and other 
activities relating to the enforcement of these statutes, regulations, 
and Executive Orders.
    (16) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (17) Authorize and approve official non-foreign travel and 
transportation for themselves, their subordinates, and others performing 
services for, or in cooperation with, their Operating Administrations.
    (18) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (5 
U.S.C. 601, et seq.) with regard to any rulemaking document for which 
issuance authority is delegated by other sections in this part. This 
authority may be redelegated to those officials to whom document 
issuance authority has been delegated.
    (19) Carry out the functions vested in the Secretary by 15 U.S.C. 
3710(a), which authorizes agencies to permit their laboratories to enter 
into cooperative research and development agreements.
    (20) [Reserved]
    (21) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Operating Administration, subject to the limits on 
that authority imposed by 31 U.S.C. 3711 and the Federal Claims 
Collection Standards, 31 CFR chapter IX.
    (22) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Operating Administration. The 
Administrator may request the approval of the Attorney General to 
adjust, compromise, and settle any such claim if the amount of the 
adjustment, compromise, or award exceeds $100,000, but only after the 
General Counsel concurs with the request. If the Administrator believes 
that a pending claim presents a novel

[[Page 32]]

question of law or of policy, he or she shall coordinate with the 
General Counsel to obtain the advice of the Assistant Attorney General 
in charge of the Civil Division. If the Administrator settles a claim 
for an amount greater than $50,000, the Administrator shall prepare a 
memorandum fully explaining the basis for the action taken and 
coordinate with the General Counsel before sending a copy of the 
memorandum to the Director, Federal Torts Claims Act Staff, Torts Branch 
of the Civil Division, U.S. Department of Justice.
    (23) Enter into memoranda of agreement with the Occupational Safety 
and Health Administration (OSHA) in regard to setting and enforcing 
occupational safety or health standards and whistleblower protection for 
employees in DOT-regulated industries. The General Counsel shall concur 
in each memorandum of understanding with OSHA prior to its execution by 
the Administrator of the Operating Administration concerned.
    (24) Enter into memoranda of agreement with the Mine Safety Health 
Administration (MSHA) in regard to setting and enforcing safety 
standards for employees in DOT-regulated industries while on mine 
property. The General Counsel shall concur in each memorandum of 
agreement with MSHA prior to its execution by the Administrator of the 
Operating Administration concerned.
    (25) Exercise the authority vested in the Secretary by Section 329A 
of the Department of Transportation and Related Agencies Appropriations 
Act, 1995, Public Law 103-331, 329A, 108 Stat. 2471, 2493 (September 30, 
1994), to enter into grants, cooperative agreements, and other 
transactions with any person, agency, or instrumentality of the United 
States, any unit of state or local government, any educational 
institution, and any other entity in execution of the Technology 
Reinvestment Project authorized under the Defense Conversion, 
Reinvestment, and Transition Assistance Act of 1992, Public Law 102-484, 
106 Stat. 2658 (October 23, 1992), and related legislation.
    (26) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, in coordination with the 
Office of the General Counsel and the Office of Intelligence, Security 
and Emergency Response, relating to the determination that information 
is Sensitive Security Information within their respective organizations.
    (27) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the 
Operating Administration's Deputy Ethics Official, the following: Gifts 
of property (other than real property) not exceeding $1,000 in value, 
gifts of services (in carrying out aviation duties and powers) not 
exceeding $1,000 in value, and reimbursement of travel expenses from 
non-federal sources not exceeding $3,000. Acceptance of gifts or travel 
reimbursement that exceed these limits in value or are otherwise 
significant may only take place with the additional concurrence of the 
General Counsel. This delegation extends only to the acceptance of gifts 
or travel expenses and does not authorize the solicitation of gifts, 
which is reserved to the Secretary at Sec.  1.21.
    (28) Exercise the authority vested in the Secretary by the Federal 
Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 
Stat. 890), as amended by the Debt Collection Improvement Act of 1996 
(Pub. L. 104-134, 110 Stat. 1321), to promulgate rules that adjust civil 
penalties.
    (29) Carry out the functions vested in the Secretary to implement 
the Uniform Relocation Assistance and Real Property Acquisition Act of 
1970 (Uniform Act), 42 U.S.C. Chapter 61, with respect to programs 
administered by their respective Operating Administrations. Each 
Operating Administration may prescribe additional Uniform Act guidance 
that is appropriate to those particular programs, provided that such 
additional guidance must be consistent with the Uniform Act and 49 CFR 
part 24. The lead agency for Uniform Act matters is the Federal Highway 
Administration (see Sec.  1.85 and 49 CFR part 24).



Sec.  1.81a  Redelegation by all Administrators.

    Except as otherwise specifically provided in this part, each 
Administrator

[[Page 33]]

may redelegate and authorize successive redelegations of authority 
within the organization under that official's jurisdiction.



Sec.  1.82  The Federal Aviation Administration.

    Is responsible for:
    (a) Promulgating and enforcing regulations on all safety matters 
relating to the operation of airports, the manufacture, operation, and 
maintenance of aircraft, and the efficiency of the National Airspace 
System;
    (b) Planning and supporting the development of an integrated 
national system of airports, with due consideration of safety, capacity, 
efficiency, environmental compatibility and sustainability;
    (c) Administering federal financial assistance programs for airports 
including airport grants-in-aid;
    (d) Preserving and enhancing the safety and efficiency of the 
Nation's air transportation system by implementing NextGen and other 
technologies, as appropriate;
    (e) Registering aircraft and recording rights in aircraft;
    (f) Developing, modifying, testing, and evaluating systems, 
procedures, facilities, and devices needed for the safe and efficient 
navigation and traffic control of aircraft;
    (h) Locating, constructing or installing, maintaining and operating 
Federal aids to air navigation, wherever necessary;
    (i) Developing air traffic regulations, and administering air 
navigation services for control of civil and military air operations 
within U.S. airspace, as well as administering such air navigation 
services as the FAA has accepted responsibility for providing in 
international airspace and the airspace of foreign countries;
    (j) Promoting aviation safety and efficiency through technical 
aviation assistance to foreign aviation authorities;
    (k) Developing strategies to improve runway safety at all commercial 
service airports;
    (l) Administering the Continuous Lower Energy, Emissions and Noise 
program, improving connections to surface transportation, and other 
efforts to increase the environmental sustainability of the Nation's air 
transportation systems;
    (m) Conducting an effective airport technology research program to 
improve airport safety, efficiency, and sustainability;
    (n) Exercising the final authority for carrying out all functions, 
powers, and duties of the Administration in accordance with 49 U.S.C. 
106(f) and adjudication in accordance with 49 U.S.C. 40110(d) and that 
such authorities supersede any conflicting provisions elsewhere in this 
part.
    (o) Promoting and encouraging U.S. leadership in commercial space 
activities, and promulgating and enforcing regulations on safety matters 
relating to commercial space transportation.



Sec.  1.83  Delegations to the Federal Aviation Administrator.

    The Federal Aviation Administrator is delegated authority to:
    (a) Carry out the following functions vested in the Secretary by 49 
U.S.C. Subtitle VII (Aviation Programs):
    (1) Sections 40103(a)(2), relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports or commercial air 
transportation for individuals with disabilities; 40109(c), but only as 
it relates to the regulation of 49 U.S.C. 46301(b) (smoke alarm device 
penalties), and 40109(e), relating to maximum flying hours 40113(a) as 
it relates to the functions vested in the Secretary and delegated in 
this section; 40114, relating to reports and records requirements; 
40115, relating to withholding information from public disclosure; 
40116, relating to the prohibition on State taxation as the prohibition 
may affect an airport sponsor's grant assurances; 40117, relating to 
passenger facility charges; 40119(b), relating to the issuance of 
regulations on disclosure of information obtained or developed in 
ensuring security; and 40127(b) of chapter 401, relating to prohibition 
on discrimination by private airports;

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    (2) Section 41723 of subchapter I of chapter 417, relating to notice 
concerning aircraft assembly;
    (3) Section 44102(b) of chapter 441, relating to defining the term 
``based and primarily used in the United States'';
    (4) Chapter 443, relating to insurance;
    (5) Chapter 445, relating to facilities, personnel, and research, 
except section 44502(a)(3) as it relates to authorizing a department, 
agency, or instrumentality of the United States Government to carry out 
any duty or power under subsection 44502(a) with the consent of the head 
of the department, agency, or instrumentality;
    (6) Chapter 447, relating to safety regulation;
    (7) Chapter 451, relating to alcohol and controlled substances 
testing;
    (8) Subpart IV of Part A of 49 U.S.C. Subtitle VII (chapters 461-
465) relating to the Secretary's authority to enforce and impose 
penalties under sections of Subtitle VII that have been delegated to the 
Federal Aviation Administrator in this section;
    (9) Part B of 49 U.S.C. Subtitle VII (chapters 471-475) relating to 
airport development and noise, except 49 U.S.C. 47129(a);
    (10) Part C of 49 U.S.C. Subtitle VII (chapters 481-483) relating to 
financing; and
    (11) Part E of 49 U.S.C. Subtitle VII (chapter 501) relating to Buy-
American Preferences.
    (b) Carry out the functions vested in the Secretary by chapters 509 
and 511 (commercial space) of title 51, U.S.C. and coordinate with the 
Assistant Secretary for Aviation and International Affairs regarding 
those functions related to the promotion of the aerospace industry.
    (c) Carry out the functions vested in the Secretary by part B of 
title II of the Clean Air Act, as amended (Pub. L. 91-604, sec. 11, 84 
Stat. 1703), and by 40 CFR part 87 as it relates to exemptions from 
aircraft air pollution standards.
    (d)(1) Except as delegated to the Under Secretary of Transportation 
for Policy by Sec.  1.25, carry out the functions vested in the 
Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, 
relating to the transportation or shipment of hazardous materials by 
air.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5114, relating to the establishment of procedures for monitoring and 
enforcing regulations with respect to the transportation of radioactive 
materials on passenger-carrying aircraft.
    (3) Participate, with the Administrator of the Pipeline and 
Hazardous Materials Safety Administration, in the Dangerous Goods Panel 
at the International Civil Aviation Organization, under the authority 
vested in the Secretary by 49 U.S.C. 5120.
    (e) Serve, or designate a representative to serve, as Vice Chairman 
and alternate Department of Transportation member of the Interagency 
Group on International Aviation (IGIA) pursuant to the interagency 
agreement of December 9, 1960, and Executive Order 11382, and provide 
for the administrative operation of the IGIA Secretariat.
    (f) Carry out the functions assigned to the Secretary by Executive 
Order 12465 relating to commercial expendable launch vehicle activities.
    (g) Carry out the functions vested in the Secretary by the National 
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993 
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).



Sec.  1.84  The Federal Highway Administration.

    Is responsible for:
    (a) Improving mobility on our Nation's highways through national 
leadership, innovation, and program delivery.
    (b) Developing safety strategies using a data-driven, systematic 
approach to address safety for motorists, bicyclists, and pedestrians 
from engineering, education, enforcement, and emergency medical services 
perspectives and coordinating with FMCSA and NHTSA as appropriate.
    (c) Planning, in cooperation with the States, the nation's highway 
system.
    (d) Improving, in cooperation with the States (via the provision of 
grants), infrastructure condition, safety, mobility and freight movement 
roads on the National Highway System, including the Interstate System 
and to other federal-aid roads and other surface transportation 
infrastructure.

[[Page 35]]

    (e) Identifying and deploying innovation aimed at shortening project 
delivery, enhancing the safety of our roadways, and protecting the 
environment.
    (f) Surveying and constructing Federal lands transportation 
facilities, Federal lands access transportation facilities, tribal 
transportation facilities, defense highways and access roads, and 
parkways and roads in national parks and other federally-administered 
areas.
    (g) Developing and administering uniform State standards for highway 
safety programs with respect to identification and surveillance of crash 
locations; highway design, construction, and maintenance, including 
context sensitive solutions, highway-related aspects of pedestrian 
safety, and traffic control devices.
    (h) Administering the Department's National Bridge Inspection 
Standards and the National Tunnel Inspection Standards to ensure the 
Nation has safe, well-maintained bridges and tunnels for use by the 
traveling public.
    (i) In coordination with NHTSA, RITA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research.
    (j) Managing TIFIA funds, 23 U.S.C. 601-609, in conjunction with the 
TIFIA Joint Program Office, including managing accounting and budgeting 
activities, and procuring any necessary financial or technical support 
services for the TIFIA program.
    (k) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on highway projects through the 
enforcement of Buy America provisions.



Sec.  1.85  Delegations to the Federal Highway Administrator.

    (a) The Federal Highway Administrator is delegated authority to 
administer the following provisions of title 23, U.S.C. (Highways):
    (1) Chapter 1, Federal-Aid Highways, except for:
    (i) Section 142 (as it relates to matters within the primary 
responsibility of the Federal Transit Administrator);
    (ii) The following sections as they relate to matters within the 
primary responsibility of the National Highway Traffic Safety 
Administration: 153, 154, 158, 161, 163, and 164; and
    (iii) Section 167(f) (National Freight Strategic Plan).
    (2) Chapter 2, Other Highways, except for section 205.
    (3) Chapter 3, General Provisions (as it relates to matters within 
the primary responsibility of the Federal Highway Administration), 
except for section 322.
    (4) Section 409 of chapter 4, Highway Safety.
    (5) Chapter 5, Research, Technology, and Education, except for 
section 508.
    (6) Chapter 6, Infrastructure Finance, subject to the limitations 
set forth in Sec. Sec.  1.33 (Assistant Secretary for Budget and 
Programs) and 1.21 (reservation to the Secretary of final approval of 
TIFIA credit assistance applications).
    (b) The Federal Highway Administrator is delegated authority to 
administer the following provisions of title 49, U.S.C. 
(Transportation):
    (1) Section 20134(a) with respect to the laws administered by the 
Federal Highway Administrator pertaining to highway safety and highway 
construction; and
    (2) Sections 31111 and 31112 (as it relates to matters within the 
primary responsibility of the Federal Highway Administration).
    (3) Section 31314 (as it relates to matters within the primary 
responsibility of the Federal Highway Administration).
    (c) The Federal Highway Administrator is delegated authority to 
administer the following laws relating generally to highways:
    (1) Section 502(c) of the General Bridge Act of 1946, as amended, 
Public Law 79-601, tit. V, 60 Stat. 847, [33 U.S.C. 525(c)].
    (2) Reorganization Plan No. 7 of 1949 (63 Stat. 1070).
    (3) The Federal-Aid Highway Act of 1954, as amended (Pub. L. 83-350, 
68 Stat. 70).
    (4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627, 
tit. I, 70 Stat. 374).
    (5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627, 
tit. II, 70 Stat. 374, 387).
    (6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat. 
141).
    (7) The Act of September 26, 1961, as amended (Pub. L. 87-307, 75 
Stat. 670).

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    (8) The Act of April 27, 1962 (Pub. L. 87-441, 76 Stat. 59).
    (9) The Federal-Aid Highway Act of 1962, as amended (Pub. L. 87-866, 
76 Stat. 1145).
    (10) The Joint Resolution of August 28, 1965, as amended (Pub. L. 
89-139, 79 Stat. 578).
    (11) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
    (12) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
    (13) The Federal-Aid Highway Act of 1970, as amended (except section 
118) (Pub. L. 91-605, 84 Stat. 1713).
    (14) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 
149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-
Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. 
L. 93-643, 88 Stat. 2281).
    (15) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1) 
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976 
(Pub. L. 94-280, 90 Stat. 425).
    (16) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C. 131 et seq., notes).
    (17) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327, 96 Stat. 
1611), except section 6 as it relates to matters within the primary 
responsibility of the Federal Transit Administrator.
    (18) The Surface Transportation Assistance Act of 1982, as amended, 
(Pub. L. 97-424, 96 Stat. 2097) except:
    (i) Sections 165 and 531 as they relate to matters within the 
primary responsibility of the Federal Transit Administrator;
    (ii) Sections 105(f), 413; 414(b)(2); 421, 426, and Title III; and
    (iii) Section 414(b)(1), unless with the concurrence of the National 
Highway Traffic Safety Administrator.
    (19) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b), 
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137, 
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151 
through 157, 164, and 208 of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
    (20) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 
126(d) through (g), 138(c), 142, 144, 147 through 154, 167, and 171, 
Title IV, as amended (as it relates to matters within the primary 
responsibility of the Federal Highway Administrator), and sections 502-
504 of Title V of the Surface Transportation Assistance Act of 1978 
(Pub. L. 95-599, 92 Stat. 2689).
    (21) Sections 201 through 205, 327 through 336, 339, 340, 349, 352, 
353, and 408 of the National Highway System Designation Act of 1995 
(Pub. L. 104-59, 109 Stat. 568).
    (22) Sections 1002(e), 1006(h), 1009(c), 1012(b) and (d) through 
(f), 1015, 1016(g), 1017(c), 1021(c) and (d), 1022(c), 1023(f) through 
(g), 1032(d), 1038 through 1041, 1044, 1046(d), 1047, 1051, 1057 through 
1060, 1072, 1073, 1105, and 6016 of the Intermodal Surface 
Transportation Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
    (23) Sections 1108(f) and (g) and 1224 of the Transportation Equity 
Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107).
    (24) Sections 1101(a), 1102, 1109(f), 1111(b)(4), 1112, 1115(c), 
1116(a) and (b), 1117, 1119(n), 1120(c), 1201, 1301, 1302, 1303, 1304, 
1305, 1306, 1308, 1310, 1404, 1408, 1409(a) and (b), 1410, 1411, 1502, 
1604, 1803, 1907, 1908, 1910, 1911, 1916, 1917, 1918, 1923, 1928, 1934, 
1935, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 1950, 1952, 
1957, 1959, 1962, 1964, 4404 (as it relates to matters within the 
primary responsibility of the Federal Highway Administrator), 5101(b), 
5202(b)(3)(B), (c), and (d), 5203(e) and (f), 5204(g) and (i), 5304, 
5305, 5306, 5307, 5308, 5309, 5502, 5504, 5508, 5511, 5512, 5513(b), 
(f), (k), and (m) (as (m) relates to (b), (f), and (k)), 5514, 6009(b) 
(as they relate to matters within the primary responsibility of the 
Federal Highway Administrator), 6017, 6018, 10210, and 10212 of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (Pub. L. 109-59, 119 Stat. 1144).
    (25) Sections 1101(a), 1102, 1106(b), 1112(b), 1113(c), 1116, 1123, 
1201(b), 1315 (as it relates to matters within the primary 
responsibility of the Federal Highway Administration), 1316 (as it 
relates to matters within the primary responsibility of the Federal 
Highway Administration), 1317 (as it relates to

[[Page 37]]

matters within the primary responsibility of the Federal Highway 
Administration), 1318(a) and (b) (as it relates to matters within the 
primary responsibility of the Federal Highway Administration), 1323 (a) 
and (b), 1401(b), (c) and (d), 1405, 1503(c), 1512(b), 1519(a), 1520, 
1522, 1523, 1524, 1525, 1526, 1527 (as it relates to matters within the 
primary responsibility of the Federal Highway Administration), 1528, 
1529, 1530 (as it relates to matters within the primary responsibility 
of the Federal Highway Administration), 1533, 1534, 1535, 32801, 32802, 
and 51001 of the Moving Ahead for Progress in the 21st Century Act (Pub. 
L. 112-141, 126 Stat. 405).
    (d) The Federal Highway Administrator is delegated authority to:
    (1) Carry out the functions vested in the Secretary of 
Transportation by section 601 of the Pipeline Safety Act of 1992 (Pub. 
L. 102-508, 106 Stat. 3289) relating to construction of the Page Avenue 
Extension Project in Missouri.
    (2) Carry out the functions of the Secretary under the Appalachian 
Regional Development Act of 1965, 40 U.S.C. Subtitle IV.
    (3) Carry out the Act of September 21, 1966, Public Law 89-599, 
relating to certain approvals concerned with a compact between the 
States of Missouri and Kansas.
    (4) Carry out the functions vested in the Secretary by section 5 (as 
it relates to bridges, other than railroad bridges, not over navigable 
waters), and section 8(a) (as it relates to all bridges other than 
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731) [33 U.S.C. 535c and 535e(a)].
    (5) Carry out the Highway Safety Act of 1966, as amended (Pub. L. 
89-564, 80 Stat. 731) for highway safety programs, research, and 
development relating to highway design, construction and maintenance, 
traffic control devices, identification and surveillance of crash 
locations, and highway-related aspects of pedestrian safety.
    (6) Exercise the authority vested in the Secretary by 49 U.S.C. 
20134(a) with respect to the laws administered by the Federal Highway 
Administrator pertaining to highway safety and highway construction
    (7) Prescribe regulations, as necessary, at part 24 of this title, 
to implement the Uniform Act, 42 U.S.C. Chapter 61, and to act as the 
lead agency in carrying out all other functions vested in the Secretary 
by the Uniform Act, in coordination with the Under Secretary.
    (8) Exercise the authority vested in the Secretary by sections 101, 
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974 
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
    (9) Carry out the functions vested in the Secretary of 
Transportation by section 114 of Part C of the Paperwork Reduction 
Reauthorization Act of 1986 (contained in the Act Making Continuing 
Appropriations for Fiscal Year 1987 and for Other Purposes, Public Law 
99-591, 100 Stat. 3341, 2241-349), relating to construction of 
Interstate Highway H-3 in Hawaii.
    (10) Carry out the functions vested in the Secretary by Public Law 
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds 
for construction of the Interstate Highway System in Fiscal Year 1985, 
apportioning certain funds for Interstate substitute highway projects, 
and increasing amounts available for emergency highway relief.
    (11) Carry out all of the functions vested in the Secretary under 
section 324 of the Fiscal Year 1986 Department of Transportation 
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the 
reservation of authority under Sec.  1.21.
    (12) Carry out the functions vested in the Secretary of 
Transportation by section 505 of the Railroad Revitalization and 
Regulatory Reform Act of 1976, as amended, (Pub. L. 94-210, 90 Stat. 31) 
relating to the Alameda Corridor Project in consultation with the 
Federal Railroad Administrator.
    (13) Act as the lead DOT agency in matters relating to the National 
Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852 [42 
U.S.C. 4321 et seq.] pertinent to the authority vested in the Secretary 
to establish, operate, and manage the Nationwide Differential Global 
Positioning System (NDGPS) by section 346 of the Department of 
Transportation and Related Agencies Appropriations Act, 1998 (Pub. L. 
105-66, 111 Stat. 1425).

[[Page 38]]

    (14) Exercise the responsibilities of the Secretary under 49 U.S.C. 
309 (high speed ground transportation).
    (15) Carry out the functions vested in the Secretary by section 
201(4)(d) and (e) of the Alaska National Interest Lands Conservation 
Act, as amended (Pub. L. 96-487, 94 Stat. 2377) [16 U.S.C. 410hh(4)(d) 
and (e)].



Sec.  1.86  The Federal Motor Carrier Safety Administration.

    Is responsible for:
    (a) Managing program and regulatory activities, including 
administering laws and promulgating and enforcing regulations on safety 
matters relating to motor carrier safety;
    (b) Carrying out motor carrier registration and authority to 
regulate household goods transportation;
    (c) Developing strategies for improving commercial motor vehicle, 
operator, and carrier safety and administering grants to implement these 
strategies;
    (d) Inspecting records and equipment of commercial motor carriers, 
and investigating accidents and reporting violations of motor carrier 
safety regulations;
    (e) Carrying out research, development, and technology transfer 
activities to promote safety of operation and equipment of motor 
vehicles for the motor carrier transportation program; and
    (f) Carrying out an effective communications and outreach program 
which includes providing relevant safety data to the public.



Sec.  1.87  Delegations to the Federal Motor Carrier Safety Administrator.

    The Federal Motor Carrier Safety Administrator is delegated 
authority to:
    (a) Carry out the following functions and exercise the authority 
vested in the Secretary by 49 U.S.C., Subtitle IV, part B:
    (1) Chapter 131, relating to general provisions on transportation 
policy;
    (2) Chapter 133, relating to administrative provisions;
    (3) Chapter 135, relating to jurisdiction;
    (4) Sections 13704 and 13707 of chapter 137, relating to rates, 
routes, and services;
    (5) Chapter 139, relating to registration and financial 
responsibility requirements, except section 13907(d)(2);
    (6) Chapter 141, relating to operations of motor carriers;
    (7) Sections 14501, 14502, and 14504a relating to Federal-State 
relations, and section 14506 relating to identification of vehicles.
    (8) Sections 14701 through 14705, 14707, 14708, 14710, and 14711 of 
chapter 147, relating to enforcement remedies, investigations and motor 
carrier liability; and
    (9) Sections 14901 through 14913, 14915, and 14916 of chapter 149 
relating to civil and criminal penalties for violations of 49 U.S.C. 
subtitle IV, part B.
    (b) Carry out the functions vested in the Secretary by sections 104 
and 204 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 
803, relating to self-insurance rules and a savings clause.
    (c) Carry out the functions vested in the Secretary by 42 U.S.C. 
4917, relating to procedures for the inspection, surveillance and 
measurement of commercial motor vehicles for compliance with interstate 
motor carrier noise emission standards and related enforcement 
activities including the promulgation of necessary regulations.
    (d) Carry out the following functions and exercise the authority 
vested in the Secretary by chapter 51 of title 49, U.S.C.:
    (1) Except as delegated to the Under Secretary of Transportation for 
Policy by Sec.  1.25, carry out the functions vested in the Secretary by 
49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, relating to 
the transportation or shipment of hazardous materials by highway.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5105(e), relating to inspections of motor vehicles carrying hazardous 
material; 49 U.S.C. 5109, relating to motor carrier safety permits, 
except subsection (f); 49 U.S.C. 5112, relating to highway routing of 
hazardous materials; 49 U.S.C. 5113, relating to unsatisfactory safety 
ratings of motor carriers; 49 U.S.C. 5119, relating to uniform forms and 
procedures;

[[Page 39]]

and 49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations 
or waivers of preemption of hazardous materials highway routing 
requirements.
    (e) Carry out the functions vested in the Secretary by:
    (1) Chapter 313 of 49, U.S.C., relating to commercial motor vehicle 
operators; and
    (2) Section 4123(c), (d) and (e) of SAFETEA-LU relating to grants, 
funding, and contract authority and availability, respectively, for 
commercial driver's license information system modernization.
    (f) Carry out the functions vested in the Secretary by subchapters 
I, III, and IV of chapter 311, title 49, U.S.C., and 49 U.S.C. 31111, 
relating to commercial motor vehicle programs, safety regulation, and 
international activities, except that the authority to promulgate safety 
standards for commercial motor vehicles and equipment subsequent to 
initial manufacture is limited to standards that are not based upon and 
similar to a Federal Motor Vehicle Safety Standard promulgated under 
chapter 301 of title 49, U.S.C.
    (g) Carry out the functions vested in the Secretary by 49 U.S.C. 
5701 relating to food transportation inspections of commercial motor 
vehicles.
    (h) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777, as amended, 
with respect to highway transportation, relating to the approval of 
means to ensure the availability of private personnel and equipment to 
remove, to the maximum extent practicable, a worst case discharge, the 
review and approval of response plans, and the authorization of motor 
carriers, subject to the Federal Water Pollution Control Act, Pub. L. 
87-88, as amended [33 U.S.C. 1321], to operate without approved response 
plans.
    (i) Carry out chapter 315 of title 49, U.S.C., relating to motor 
carrier safety.
    (j) Carry out 49 U.S.C. 502, 503, 504, 506, and 523 to the extent 
they relate to motor carriers, motor carriers of migrant workers, and 
motor private carriers; 49 U.S.C. 507 to the extent it relates to motor 
carriers, motor carries of migrant workers, motor private carriers, or 
freight forwarders; and 49 U.S.C. 505, 508, 521(b), and 525.
    (k) Carry out the functions and exercise the authority vested in the 
Secretary by 23 U.S.C. 502(a)(1)(A).
    (l) Carry out the functions vested in the Secretary by the following 
sections of SAFETEA-LU:
    (1) Section 4105(b)(1) relating to the study concerning predatory 
tow truck operations;
    (2) Section 4126, relating to the commercial vehicle information 
systems and networks deployment program;
    (3) Section 4127, relating to outreach and education;
    (4) Section 4128, relating to grants under the safety data 
improvement program;
    (5) Section 4130-4133, amending section 229 of the Motor Carrier 
Safety Improvement Act of 1999 (49 U.S.C. 31136 note) relating to the 
operators of vehicles transporting agricultural commodities and farm 
supplies, and hours of service for miscellaneous vehicle operators;
    (6) Section 4134 (49 U.S.C. 31301 note), relating to the grant 
program for persons to train operators of commercial motor vehicles;
    (7) [Reserved]
    (8) Section 4136 relating to interstate vans;
    (9) Section 4138 relating to high risk carrier compliance (49 U.S.C. 
31144 note);
    (10) Section 4139(a)(1), relating to the training of and outreach to 
State personnel; section (b)(1) relating to a review of Canadian and 
Mexican compliance with Federal motor vehicles safety standards; and the 
first sentence of section (b)(2) relating to the report concerning the 
findings and conclusions of the review required by section (b)(1) (see 
49 U.S.C. 31100 note);
    (11) Section 4143, granting authority to stop commercial motor 
vehicles, 18 U.S.C. 3064;
    (12) Section 4144, relating to a motor carrier safety advisory 
committee;
    (13) [Reserved]
    (14) Section 4147, relating to emergency conditions requiring 
immediate response (amending section 229 of the Motor Carrier Safety 
Improvement Act of 1999 (49 U.S.C. 31136 note);

[[Page 40]]

    (15) Section 4213, relating to the establishment of a working group 
for the development of practices and procedures to enhance Federal-State 
relations (49 U.S.C. 14710 note);
    (16) Section 4214, relating to the establishment of a system for 
collecting consumer complaint information and issuing regulations 
related to reporting requirements under the system (49 U.S.C. 14701 
note); and
    (17) Section 4308, granting authority to adopt regulations to carry 
out SAFETEA-LU, Title IV, subtitle C (49 U.S.C. 13902 note).
    (m) Carry out the functions vested in the Secretary by the following 
sections of the Moving Ahead for Progress in the 21st Century Act (Pub. 
L. 112-141, 126 Stat. 405):
    (1) Section 32101(b) concerning proficiency examination (49 U.S.C. 
13902 note).
    (2) Section 32101(c) concerning conforming amendments to proficiency 
examinations (49 U.S.C. 31144 note).
    (3) Section 32101(d) concerning agricultural and farm transportation 
exemption (49 U.S.C. 31136 note).
    (4) Section 32104 concerning a study of financial responsibility 
requirements (49 U.S.C. 13903 note).
    (5) Section 32206 concerning a rental truck accident study.
    (6) Section 32301(a) requiring an hours of service study.
    (7) Section 32302(c)(2) regarding the establishment of state 
licensing agency oversight (49 U.S.C. 31149 note).
    (8) Section 32303(b) relating to the establishment of a driver 
record notification system (49 U.S.C. 31304 note).
    (9) Section 32303(c) relating to a plan for national notification 
system.
    (10) Section 32308 regarding a study, plan, report and 
implementation of accelerated veteran's licensing procedures (49 U.S.C. 
31301 note).
    (11) Section 32603(i) relating to the administration of grant 
programs (49 U.S.C. 31100).
    (12) Section 32605 related to a report on the commercial vehicle 
information system and networks.
    (12) Sections 32702, 32707(b), 32708, 32709, 32710, and 32711 
related to the Motorcoach Enhanced Safety Act of 2012 (49 U.S.C. 31136 
note).
    (13) Section 32918(b) relating to broker and forwarder financial 
responsibility rulemaking requirement (49 U.S.C. 13906 note).
    (14) Section 32934 related to exemptions from requirements for 
covered farm vehicles (49 U.S.C. 31136 note).



Sec.  1.88  The Federal Railroad Administration.

    Is responsible for:
    (a) Regulating safety functions pertaining to railroads;
    (b) Conducting research and development activity in support of safer 
and more efficient rail transportation;
    (c) Investigating and issuing reports concerning collisions, 
derailments, and other railroad accidents resulting in serious injury to 
persons or to the property of a railroad;
    (d) Developing safety strategies to combat the causes of collisions, 
derailments, and other railroad accidents, as well as to reduce overall 
risk in the Nation's rail systems;
    (e) Promoting and strengthening the national rail system, including 
freight rail and high speed and higher performing intercity passenger 
rail.
    (f) Providing financial assistance, including grants, loans and loan 
guarantees, for rail freight and intermodal development, as well as 
high-speed and intercity passenger rail development;
    (g) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on rail projects through the 
enforcement of Buy America provisions; and
    (h) Strengthening local communities by supporting station-area 
development and strong connections among rail passenger service, 
intercity bus, local transit, bicycle/pedestrian, and airport 
facilities.



Sec.  1.89  Delegations to the Federal Railroad Administrator.

    The Federal Railroad Administrator is delegated authority to:
    (a) Carry out the functions and exercise the authority vested in the 
Secretary by 49 U.S.C. Subtitle V, Part A (Safety, chapter 201 et seq.), 
Part B (Assistance, chapter 221 et seq.), Part C (Passenger 
Transportation, chapter 241

[[Page 41]]

et seq.), Part D (High-speed Rail, chapter 261), and section 28101 of 
Part E, relating to the law enforcement authority of railroad police 
officers; except 49 U.S.C. 20134 with respect to highway, traffic, and 
motor vehicle safety and highway construction.
    (b) Carry out the functions and exercise the authority vested in the 
Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, 
Div. A, 122 Stat. 4848).
    (c) Carry out the functions and exercise the authority vested in the 
Secretary by the Passenger Rail Investment and Improvement Act of 2008 
(Pub. L. 110-432, Div. B, 122 Stat. 4907), except Title VI (122 Stat. 
4968) as it relates to capital and preventive maintenance projects for 
the Washington Metropolitan Area Transit Authority.
    (d) Carry out the functions vested in the Secretary by section 5 (as 
it relates to railroad bridges not over navigable waterways) and section 
8(a) (as it relates to railroad bridges) of the International Bridge Act 
of 1972 (Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
    (e) Exercise the administrative powers vested in the Secretary by 49 
U.S.C. Subtitle I, Chapter 5 (section 501 et seq.) pertaining to 
railroad safety and 49 U.S.C. 103 (Federal Railroad Administration).
    (f) Promote and undertake research and development relating to rail 
matters generally (49 U.S.C. Chapter 3 (section 301 et seq). and 49 
U.S.C. 102).
    (g) Carry out the functions vested in the Secretary by 45 U.S.C. Ch. 
15 (section 601 et seq.) with respect to emergency rail services, except 
the authority to make findings required by 45 U.S.C. 662(a) and the 
authority to sign guarantees of certificates issued by trustees.
    (h) Carry out the functions vested in the Secretary by 45 U.S.C. 
chapter 17 (section 801 et seq.) with respect to railroad revitalization 
and regulatory reform and the Railroad Rehabilitation and Improvement 
Financing program.
    (i) Carry out the functions vested in the Secretary by 45 U.S.C. 
chapter 21 (section 1201 et seq.) related to the Alaska Railroad 
transfer.
    (j) Except as delegated to the Under Secretary of Transportation for 
Policy by Sec.  1.25, carry out the functions vested in the Secretary by 
49 U.S.C. 5121-5124 relating to the transportation or shipment of 
hazardous materials by railroad.
    (k) Carry out the functions vested in the Secretary by section 7 of 
Executive Order 12580 (delegating sections 108 and 109, respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate 
to rolling stock.
    (l) Carry out the functions vested in the Secretary by 33 U.S.C. 
493, relating to disputes over the terms and compensation for use of 
railroad bridges built under that statute.
    (m) Carry out the functions vested in the Secretary by 49 U.S.C. 
5701 with respect to transportation of food and other products by 
railroad.
    (n) Carry out the functions vested in the Secretary by 23 U.S.C. 322 
(Magnetic Levitation Transportation Technology Deployment Program).
    (o) Carry out the functions vested in the Secretary by sections 1307 
(see note to 23 U.S.C. 322), and 1946 of SAFETEA-LU as they relate to 
deployment of magnetic levitation transportation projects and a study of 
rail transportation and regulation.
    (p) Carry out the function vested in the Secretary by the Bankruptcy 
Code (11 U.S.C. 1163), which relates to the nomination of trustees for 
rail carriers in reorganization, with the concurrence of the Office of 
the General Counsel.
    (q) Carry out the functions vested in the Secretary by 23 U.S.C. 
327, as it relates to railroad projects.
    (r) Carry out the functions vested in the Secretary by the sections 
1318(d) and 1534 of Moving Ahead for Progress in the 21st Century Act 
(Pub. L. 112-141, 126 Stat. 405), as they relate to railroads.
    (s) Carry out the functions vested in the Secretary by section 
2(d)(2) of Executive Order 12777, with respect to rail transportation, 
relating to the approval of means to ensure the availability of private 
personnel and equipment to remove, to the maximum extent practicable, a 
worst case discharge, the review and approval of response plans, and the 
authorization of

[[Page 42]]

railroads to operate without approved response plans.



Sec.  1.90  The Federal Transit Administration.

    Is responsible for:
    (a) Providing grants that support the development of safe, 
comprehensive and coordinated public transportation systems;
    (b) Creating and implementing a national public transportation 
safety program that includes the development of safety practices and 
standards;
    (c) Assisting public transportation systems to achieve and maintain 
their infrastructure, equipment and vehicles in a state of good repair;
    (d) Promoting the environmental benefits of public transportation 
through continuing, cooperative, and comprehensive planning that 
improves the performance of the intermodal transportation system.
    (e) Supporting research, development, demonstration, and deployment 
projects dedicated to assisting in the delivery of safe, efficient and 
effective public transportation service;
    (f) Supporting, in coordination with FHWA and FRA, strong 
connections between public transportation and other modes of 
transportation, including bicycle/pedestrian facilities and station-area 
development that strengthen local communities; and
    (g) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on transit projects through the 
enforcement of Buy America provisions.



Sec.  1.91  Delegations to the Federal Transit Administrator.

    The Federal Transit Administrator is delegated authority to carry 
out the following:
    (a) Chapter 53 of title 49, United States Code, and notes thereto.
    (b) Sections 3 and 9 through 15 of the National Capital 
Transportation Act of 1969 (Pub. L. 91-143, 83 Stat. 320), as amended 
(DC Code, section 9-1101.01 et seq.).
    (c) Sections of title 23, United States Code, and notes thereto that 
involve public transportation projects, including those provisions that 
pertain to planning, environmental reviews and use of historic resources 
for public transportation projects.
    (d) Section 303 of title 49, United States Code, as it involves 
public transportation projects.
    (e) The following sections of Moving Ahead for Progress in the 21st 
Century Act (Pub. L. 112-141, 126 Stat. 405):
    (1) Sections 1315 [23 U.S.C. 109 note], 1316 [23 U.S.C. 109 note], 
1317 [23 U.S.C. 109 note], 1318 [23 U.S.C. 109 note], and 1321, as they 
relate to public transit projects; and
    (2) Sections 20005(b) [49 U.S.C. 5303 note], 20008(b) [49 U.S.C. 
5309 note], 20013(b) [49 U.S.C. 5315 note], 20017(b) [49 U.S.C. 5324 
note], 20021(b), and 20025(b) [49 U.S.C. 5335 note].
    (f) Section 601 of the Passenger Rail Investment and Improvement Act 
of 2008 (Pub. L. 110-432, Div. B).



Sec.  1.92  The Maritime Administration.

    Is responsible for:
    (a) Fostering the development and maintenance of a United States 
merchant marine sufficient to meet the needs of the national security 
and of the domestic and foreign commerce of the United States;
    (b) Operating the U.S. Merchant Marine Academy in order to train 
officers for the Nation's merchant marine;
    (c) Promoting development of ports and intermodal transportation 
systems through investments in port infrastructure via grant programs 
and America's Marine Highway program;
    (d) Promoting the growth and modernization of the U.S. merchant 
marine and U.S. shipyards by administering loan and guarantee programs;
    (e) Overseeing the administration of cargo preference statutes;
    (f) Maintaining custody of, operating, and preserving ships in the 
National Defense Reserve Fleet as well as other vessels under the 
custody of MARAD and managing, maintaining and operating its Ready 
Reserve Force component;
    (g) Conducting research and development to improve and promote the 
waterborne commerce of the United States.

[[Page 43]]



Sec.  1.93  Delegations to the Maritime Administrator.

    The Maritime Administrator is delegated authority to:
    (a) Carry out the functions and exercise the authorities vested in 
the Secretary under Subtitle V of title 46, U.S.C., except for 46 U.S.C. 
51303 and 55601(c) and (d);
    (b) Carry out the functions and exercise the authorities vested in 
the Secretary under Subtitle III of title 46, U.S.C.;
    (c) Carry out the functions and exercise the authorities vested in 
the Secretary under the Merchant Ship Sales Act of 1946, as amended (50 
U.S.C. App. 1735 et seq.);
    (d) Carry out the functions and exercise the authorities vested in 
the Secretary under 50 U.S.C. App 1744 with respect to the National 
Shipping Authority;
    (e) Exercise the authority vested in the Administrator of General 
Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40 
U.S.C. 318-318c and the Federal Property and Administrative Services Act 
of 1949, as amended, Public Law 81-152, 63 Stat. 377, and delegated to 
the Secretary of Transportation by the Administrator of General Services 
on March 23, 2000, relating to the enforcement of laws for the 
protection of property and persons at the United States Merchant Marine 
Academy, located in Kings Point, New York. This may be accomplished 
through appointment of uniformed personnel as special police, 
establishment of rules and regulations governing conduct on the affected 
property, and execution of agreements with other Federal, State, or 
local authorities.
    (f) Carry out the functions and exercise the authorities vested in 
the Secretary by section 3(d) of the Act to Prevent Pollution from Ships 
(33 U.S.C. 1902(d)) as it relates to ships owned or operated by the 
Maritime Administration when engaged in noncommercial service;
    (g) Carry out the functions vested in the Secretary by 40 U.S.C. 554 
relating to authority to convey surplus real property to public entities 
for use in the development or operation of port facilities;
    (h) Carry out the following powers and duties and exercise the 
authorities vested in the Secretary by the Deepwater Port Act of 1974, 
Public Law 93-627, as amended (33 U.S.C. 1501 et seq.):
    (1) Section 4: The authority to issue, transfer, amend, or reinstate 
a license for the construction and operation of a deepwater port (33 
U.S.C. 1503(b));
    (2) Section 4: The authority to process applications for the 
issuance, transfer, amendment, or reinstatement of a license for the 
construction and operation of a deepwater port (33 U.S.C. 1503(b)), in 
coordination with the Commandant of the Coast Guard;
    (3) Section 5(h)(2): Approval of fees charged by adjacent coastal 
States for use of a deepwater port and directly related land-based 
facilities (33 U.S.C. 1504(h)(2));
    (4) Section 4: Make Adjacent Coastal State designations pursuant to 
33 U.S.C. 1508(a)(2);
    (5) Section 11: In collaboration with the Assistant Secretary for 
Aviation and International Affairs and the Assistant Secretary for 
Transportation Policy, consultation with the Secretary of State relating 
to international actions and cooperation in the economic, trade and 
general transportation policy aspects of the ownership and operation of 
deepwater ports (33 U.S.C. 1510);
    (6) Section 16(b): Submission of notice of the commencement of a 
civil suit (33 U.S.C. 1515(b));
    (7) Section 16(c): Intervention in any civil action to which the 
Secretary is not a party (33 U.S.C. 1515(c));
    (8) Sections 8(b), 12: Authority to request the Attorney General to 
seek the suspension or termination of a deepwater port license and to 
initiate a proceeding before the Surface Transportation Board (33 U.S.C. 
1507, 1511);
    (i) Carry out the functions and exercise the authority vested in the 
Secretary by section 109 of the Maritime Transportation Security Act of 
2002, Public Law 107-295, 116 Stat. 2064, 46 U.S.C. 70101 note, to 
provide training for maritime security professionals;
    (j) Exercise all the powers of the Secretary under 49 U.S.C. 336 
with respect to civil penalties;
    (k) Carry out all of the duties, authorities and powers of the 
Secretary

[[Page 44]]

under the Reefs for Marine Life Conservation law, 16 U.S.C. 1220 et 
seq.;
    (l) In consultation and coordination with the Office of 
Intelligence, Security and Emergency Response, carry out the functions 
under the Defense Production Act of 1950, Public Law 81-774, 64 Stat. 
798, as amended (50 U.S.C. app. 2061 et seq.), that were vested in the 
Secretary by Executive Order 13603 (``National Defense Resources 
Preparedness'') as such authorities relate to the use of sealift support 
and port facilities, and other maritime industry related facilities and 
services, and maritime-related voluntary agreements pursuant to Section 
708 of the Act;
    (m) Carry out the functions related to the National Defense Reserve 
Fleet vested in the Secretary pursuant to 50 U.S.C. App. 1744;
    (n) Carry out all of the duties, authorities and powers of the 
Secretary under the following statutes:
    (1) 10 U.S.C. 2218, the National Defense Sealift Fund;
    (2) 40 U.S.C. 3134, Bond waiver authority for certain contracts;
    (3) 46 U.S.C. 501(b), Waiver of navigation and vessel-inspection 
laws and determination of non-availability of qualified U.S. flag 
vessels;
    (4) 46 U.S.C. 3316, granting authority to appoint a representative 
to Executive Board of the American Bureau of Shipping (ABS);
    (5) 46 U.S.C. 12119(a)(5), authority to waive or reduce the 
qualified proprietary cargo requirements and determine citizenship;
    (6) 50 U.S.C. 196, Emergency foreign vessel acquisition; purchase 
and requisition of vessels lying idle in United States waters;
    (7) 50 U.S.C. 197, Voluntary purchase or charter agreement;
    (8) 50 U.S.C. 198, granting authority over requisitioned vessels;
    (o) Carry out all of the duties, authorities and powers of the 
Secretary with respect to 16 U.S.C. 1220 et seq. (use of obsolete ships 
as reefs for marine life conservation);
    (p) Carry out all of the duties, powers and authorities delegated to 
the Secretary of Transportation by the Administrator of General Services 
with respect to the leasing and management of property under 41 CFR 102-
72.30, Delegations of Authority;
    (q) Carry out all of the duties, authorities and powers vested in 
the Secretary by 46 U.S.C. 70101 note, to provide training for maritime 
security professionals;
    (r) Carry out the duties, authorities and powers of the Secretary 
under the following statutes:
    (1) Title XV, Subtitle B of the Food, Agriculture, Conservation, and 
Trade Act of 1990, Public Law 101-624 (104 Stat. 3359, 3665), 7 U.S.C. 
1421 and Chapter 553 of Title 46, U.S.C., authorizing the Secretary to 
designate ``American Great Lakes'' vessels that are exempt from the 
restrictions relating to the carriage of preference cargoes;
    (2) 46 U.S.C. 2302(e) (determination of substandard vessels);
    (3) Section 304(a) of Coast Guard and Maritime Transportation Act of 
2006, 33 U.S.C. 1503(i), a program to promote liquefied natural gas 
tanker transportation;
    (4) Section 306 of Public Law 111-281, concerning the phaseout of 
vessels supporting oil and gas development;
    (s) Carry out the functions and exercise the authorities vested in 
the President by Section 1019 of John Warner National Defense 
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and delegated 
to the Secretary by the President;
    (t) Lead efforts pertaining to civil emergency planning for sealift 
support for North Atlantic Treaty Organization (NATO) operations, 
including coordinating DOT representation on sealift-related committees, 
in coordination with the Office of Intelligence, Security and Emergency 
Response;
    (u) Carry out the duties, functions, authorities, and powers of the 
Secretary under 49 U.S.C. 109(e), (f), (h), (j)(3);
    (v) Carry out all of the duties, authorities, and powers of the 
Secretary of Transportation, with respect to matters involving the 
Clarification Act, Public Law 78-17, 57 Stat. 45, as amended (50 U.S.C. 
App. 1291);
    (w) Carry out all of the duties, authorities, and powers of the 
Secretary under 46 U.S.C. 12102(d).

[[Page 45]]



Sec.  1.94  The National Highway Traffic Safety Administration.

    Is responsible for:
    (a) In highway safety, setting uniform guidelines for a coordinated 
national highway safety formula grant program carried out by the States 
and local communities; conducting research and development activities, 
including demonstration projects and the collection and analysis of 
highway and motor vehicle safety data and related information; 
administering highway safety grant programs to encourage State efforts 
in such areas as occupant protection, impaired and distracted driving, 
traffic safety data information system improvements, motorcyclist 
safety, child safety restraints, and graduated driver's licensing; 
determining State compliance with highway traffic safety law 
requirements; administering a nationwide high visibility enforcement 
program; administering the National Driver Register; and leading and 
coordinating efforts to establish, expand, and improve State, local, 
tribal, and regional emergency medical services and 9-1-1 systems.
    (b) In motor vehicle safety, establishing and enforcing safety 
standards and regulations for the manufacture and importation of motor 
vehicles and motor vehicle equipment; conducting research, development, 
and testing concerning motor vehicle safety, including vehicle-to-
vehicle and vehicle-to-infrastructure technologies and other new or 
advanced vehicle technologies; and investigating safety-related defects 
and non-compliance in motor vehicles and motor vehicle equipment and 
administering related recalls.
    (c) In automobile fuel economy, establishing automobile fuel economy 
standards for passenger and non-passenger automobiles and fuel 
efficiency standards for medium and heavy vehicles.
    (d) In consumer protection and information, establishing 
requirements and carrying out programs for passenger motor vehicle 
information, such as the New Car Assessment Program; bumper standards 
for passenger motor vehicles; odometer requirements; and passenger motor 
vehicle theft prevention standards.



Sec.  1.95  Delegations to the National Highway Traffic Safety Administrator.

    The National Highway Traffic Safety Administrator is delegated 
authority to:
    (a) Exercise the authority vested in the Secretary under chapters 
301, 303, 321, 323, 325, 327, 329, and 331, of Title 49, U.S.C., except 
for 49 U.S.C. 32916(b).
    (b) Exercise the authority vested in the Secretary by 49 U.S.C. 
20134(a) with respect to laws administered by the National Highway 
Traffic Safety Administration pertaining to highway, traffic and motor 
vehicle safety.
    (c) Carry out, in coordination with the Federal Motor Carrier Safety 
Administrator, the authority vested in the Secretary by subchapter III 
of chapter 311 of title 49, U.S.C., to promulgate safety standards for 
commercial motor vehicles and equipment subsequent to initial 
manufacture when the standards are based upon and similar to a Federal 
Motor Vehicle Safety Standard promulgated, either simultaneously or 
previously, under chapter 301 of title 49, U.S.C.
    (d) Carry out the Highway Safety Act of 1966, as amended (Pub. L. 
89-564, 80 Stat. 731), for highway safety programs, research, and 
development except those relating to highway design, construction and 
maintenance, traffic control devices, identification and surveillance of 
crash locations, and highway-related aspects of pedestrian safety.
    (e) Exercise the authority vested in the Secretary under chapter 4 
of title 23, U.S.C., except for 23 U.S.C. 409.
    (f) Carry out the functions and exercise the authority vested in the 
Secretary for the following provisions of title 23, U.S.C. (with respect 
to matters within the primary responsibility of the National Highway 
Traffic Safety Administration): 153, 154, 158, 161, 163, 164, and 313 
(Buy America).
    (g) Carry out the consultation functions vested in the Secretary by 
Executive Order 11912, as amended (``Delegation of Authorities Relating 
to Energy Policy and Conservation'') relating to automobiles.
    (h) Exercise the authority vested in the Secretary by section 210(2) 
of the

[[Page 46]]

Clean Air Act, Public Law 90-148, as amended [42 U.S.C. 7544(2)].
    (i) Carry out the functions and exercise the authority vested in the 
Secretary by the following sections of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-
59:
    (1) Section 1906 [23 U.S.C. 402 note], relating to the grant program 
to prohibit racial profiling;
    (2) Section 2010 [23 U.S.C. 402 note], relating to motorcyclist 
safety;
    (3) Section 2011 [23 U.S.C. 405 note], relating to child safety and 
child booster seat incentive grants;
    (4) Section 10202 [42 U.S.C. 300d-4], relating to emergency medical 
services, as amended by section 31108 of the Moving Ahead for Progress 
in the 21st Century Act, Public Law 112-141;
    (5) Section 10305(b) [49 U.S.C. 30101 note], relating to the 
publication of non-traffic incident data collection; and
    (6) Section 10309(a), relating to the testing of 15-passenger van 
safety.
    (j) Carry out the following functions and exercise the authority 
vested in the Secretary under the Energy Independence and Security Act 
of 2007 (Pub. L. 110-140):
    (1) Section 106 [49 U.S.C. 32902 note], relating to the continued 
applicability of existing standards;
    (2) Section 107 [49 U.S.C. 32902 note], relating to the National 
Academy of Sciences studies;
    (3) Section 108, relating to the National Academy of Sciences study 
of medium-duty and heavy-duty truck fuel economy;
    (4) Section 110 [49 U.S.C. 32908 note], relating to the periodic 
review of accuracy of fuel economy labeling;
    (5) Section 113 [49 U.S.C. 32904 note], relating to the exemption 
from separate calculation requirement;
    (6) Section 131(b)(2) and (c)(1) [42 U.S.C. 17011(b)(2), (c)(1)], 
relating to the Plug-in Electric Drive Vehicle Program;
    (7) Section 225(a), relating to the study of optimization of 
flexible fueled vehicles to use E-85 fuel;
    (8) Section 227(a), relating to the study of optimization of biogas 
used in natural gas vehicles;
    (9) Section 242 [42 U.S.C. 17051], relating to renewable fuel 
dispenser requirements; and
    (10) Section 248(a) [42 U.S.C. 17054(a)], relating to biofuels 
distribution and advanced biofuels infrastructure.
    (k) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under section 7103 of the 
Transportation Equity Act for the 21st Century, Public Law 105-178.
    (l) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under sections 3(d), 10, 11 and 13 
through 17 [uncodified provisions] of the Transportation Recall 
Enhancement, Accountability, and Documentation (TREAD) Act, Public Law 
106-414.
    (m) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under Anton's Law, Public Law 107-318.
    (n) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under the Cameron Gulbransen Kids 
Transportation Safety Act of 2007 or the K.T. Safety Act of 2007, Public 
Law 110-189.
    (o) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under the Pedestrian Safety 
Enhancement Act of 2010, Public Law 111-373.
    (p) Carry out the functions and exercise the authority vested in the 
Secretary by the following sections of the Moving Ahead for Progress in 
the 21st Century Act, Public Law 112-141:
    (1) Sections 31101(d) and (f) (23 U.S.C. 402 note), Authorization of 
Appropriations;
    (2) Sections 31203(b), Civil Penalty Criteria Rule, 31301, Public 
Availability of Recall Information, 31302, NHTSA Outreach to 
Manufacturer, Dealer, and Mechanic Personnel, 31309(a), Study of Crash 
Data Collection, 31401, NHTSA Electronics, Software, and Engineering 
Expertise, 31402, Electronics Systems Performance, 31501, Child Safety 
Seats, 31502, Child Restraint Anchorage Systems, 31503, Rear Seat Belt 
Reminders, 31504, Unattended Passenger Reminders, 31505, New Deadline, 
and 31601, Rulemaking on Visibility of Agricultural Equipment;

[[Page 47]]

    (3) Section 32201, Crashworthiness Standards; and
    (4) Sections 32703, Regulations for Improved Occupant Protection, 
Passenger Evacuation, and Crash Avoidance, 32704, Fire Prevention and 
Mitigation, 32705, Occupant Protection, Collision Avoidance, Fire 
Causation, and Fire Extinguisher Research and Testing, and 32706, 
Concurrence of Research and Rulemaking.
    (q) Carry out the functions and exercise the authority vested in the 
Secretary to implement section 3(g)-(h) of the Automobile Information 
Disclosure Act (Pub. L. 85-506, 72 Stat. 325), as amended (15 U.S.C. 
1232(g)-(h)).



Sec.  1.96  The Pipeline and Hazardous Materials Safety Administration.

    Is responsible for:
    (a) Pipelines. (1) Administering a national program of safety in 
natural gas and hazardous liquid pipeline transportation including 
identifying pipeline safety concerns, developing uniform safety 
standards, and promulgating and enforcing safety regulations;
    (2) Increasing the gas and liquid pipeline industry's focus on 
safety beyond compliance with minimum standards, with particular 
attention to developing strong safety cultures in regulated entities;
    (3) Enhancing information awareness systems at the State and local 
levels to reduce pipeline damage from excavation and providing grants to 
support these systems; and
    (4) Encouraging the timely replacement of aging and deteriorating 
pipelines in distribution systems, especially in areas with high 
potential negative consequences to public safety and the environment.
    (b) Hazardous materials. (1) Administering a national program of 
safety, including security, in multi-modal hazardous materials 
transportation including identifying hazardous materials safety 
concerns, developing uniform safety standards, and promulgating and 
enforcing safety and security regulations; and
    (2) Conducting outreach and provide available grants assistance to 
increase awareness and emergency preparedness.



Sec.  1.97  Delegations to the Pipeline and Hazardous Materials Safety Administrator.

    The Pipeline and Hazardous Materials Safety Administrator is 
delegated responsibility to:
    (a) Pipelines. (1) Exercise the authority vested in the Secretary 
under chapter 601 of title 49, U.S.C.
    (2) Exercise the authority vested in the Secretary under section 28 
of the Mineral Leasing Act, as amended (30 U.S.C. 185(a) and 30 U.S.C. 
185(w)(3)).
    (3) Exercise the authority vested in the Secretary under section 21 
of the Deepwater Port Act of 1974, as amended (33 U.S.C. 1520) relating 
to the establishment, enforcement and review of regulations concerning 
the safe construction, operation or maintenance of oil or natural gas 
pipelines on Federal lands and the Outer Continental Shelf.
    (4) Carry out the functions vested in the Secretary by section 5 (as 
it relates to pipelines not over navigable waterways) and section 8(a) 
(as it relates to pipelines) of the International Bridge Act of 1972 
(Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
    (5) Exercise the authority vested in the Secretary under the Outer 
Continental Shelf Lands Act, as amended (43 U.S.C. 1331 et seq.) with 
respect to the establishment, enforcement and review of regulations 
concerning pipeline safety.
    (6) Carry out the functions vested in the Secretary by section 7 of 
Executive Order 12580 (delegating sections 108 and 109, respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate 
to pipelines.
    (7) Exercise the authority vested in the Secretary by 49 U.S.C. 
60301 as it relates to pipeline safety user fees.
    (8) Exercise the authority vested in the Secretary by 49 U.S.C. 6101 
et seq. as it relates to pipeline damage prevention One Call programs.
    (9) Exercise the authority vested in the Secretary by the Pipeline 
Safety Improvement Act of 2002 (Pub. L. 107-355, 116 Stat. 2985).
    (10) Exercise the authority vested in the Secretary by the Pipeline 
Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-
90).

[[Page 48]]

    (b) Hazardous materials. Except as delegated to the Under Secretary 
of Transportation for Policy by Sec.  1.25:
    (1) Carry out the functions vested in the Secretary by 49 U.S.C. 
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular 
emphasis on the shipment of hazardous materials and the manufacture, 
fabrication, marking, maintenance, reconditioning, repair or test of 
multi-modal containers that are represented, marked, certified, or sold 
for use in the transportation of hazardous materials; and
    (2) Participate, with the Administrator of the Federal Aviation 
Administration, in the Dangerous Goods Panel at the International Civil 
Aviation Organization, under the authority vested in the Secretary by 49 
U.S.C. 5120; and
    (3) Carry out, in coordination with the Administrators of the 
Federal Aviation Administration (for matters relating to the transport 
of hazardous materials by aircraft), the Federal Motor Carrier Safety 
Administration (for matters relating to the transport of hazardous 
materials by public highway), and the Federal Railroad Administration 
(for matters relating to the transport of hazardous materials by rail), 
the functions vested in the Secretary by all other provisions of the 
Federal hazardous material transportation law (49 U.S.C. 5101 et seq.) 
except as delegated by Sec. Sec.  1.83(d)(2) and (3) (FAA) and 
1.87(d)(2) (FMCSA) and by paragraph 2(99) of Department of Homeland 
Security Delegation No. 0170.
    (4) Exercise the authority vested in the Secretary by sections 33005 
(49 U.S.C. 5121 note), 33006, 33008 (49 U.S.C. 5121 note), 33009(b)(2) 
(49 U.S.C. 5121 note), and 33012 (49 U.S.C. 5117 note) of the Moving 
Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat. 
405).
    (c) Exercise the authority delegated to the Secretary in the 
following sections of Executive Order 12777:
    (1) Section 2(b)(2) relating to the establishment of procedures, 
methods, equipment and other requirements to prevent discharges from, 
and to contain oil and hazardous substances in, pipelines, motor 
carriers, and railroads; and
    (2) Section 2(d)(2) relating to the issuance of regulations 
requiring the owners or operators of pipelines, motor carriers, and 
railroads, subject to the Federal Water Pollution Control Act (33 U.S.C. 
1321 et seq.), to prepare and submit response plans. For pipelines 
subject to the Federal Water Pollution Control Act, this authority 
includes the approval of means to ensure the availability of private 
personnel and equipment to remove, to the maximum extent practicable, a 
worst case discharge, the review and approval of response plans, and the 
authorization of pipelines to operate without approved response plans.



Sec.  1.98  The Research and Innovative Technology Administration.

    Is responsible for:
    (a) Coordinating, facilitating, and reviewing the Department's 
research and development programs and activities, except as related to 
NHTSA;
    (b) After consultation with Operating Administration and OST 
offices, making recommendations to the Secretary on all Operating 
Administration and OST research budgets;
    (c) Providing leadership on technical, navigation, communication, 
and systems engineering activities, and spectrum management on behalf of 
the civil and civilian PNT communities;
    (d) Directing and administering university transportation research 
grants;
    (e) In coordination with FHWA, NHTSA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research;
    (f) Advancing Intelligent Transportation Systems (ITS) research and 
deployment of real-time multi-modal travel information for travelers, 
carriers, and public agencies;
    (g) Providing oversight of the activities of the Volpe National 
Transportation Systems Center, the ITS Joint Program Office, the Bureau 
of Transportation Statistics, and the Transportation Safety Institute; 
and
    (h) Providing technical support to advance the mission of the 
Secretary's Safety Council.

[[Page 49]]



Sec.  1.99  Delegations to the Research and Innovative Technology Administrator.

    The Research and Innovative Technology Administrator is delegated 
authority for the following:
    (a) Coordination of departmental research and development programs 
and activities. (1) Coordinate, facilitate, and review all departmental 
research and development programs and activities, except those carried 
out by the National Highway Traffic Safety Administration, as described 
in section 4(b) of the Norman Y. Mineta Research and Special Programs 
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
    (2) After consultation with Operating Administration and OST 
offices, RITA shall make recommendations to the Secretary on all 
Operating Administration and OST research budgets.
    (b) Science and technology. (1) With respect to scientific and 
technological matters, serve as principal advisor to the Secretary and 
representative of the Department to the academic community, the private 
sector, professional organizations, and other federal, state and local 
government agencies.
    (2) Serve as principal liaison official for the Department of 
Transportation with the Office of Science and Technology Policy in the 
Executive Office of the President, the National Science and Technology 
Council, and the President's Committee of Advisors on Science and 
Technology.
    (3) Serve as primary official responsible for coordination and 
oversight of the Department's implementation of section 2 of the Federal 
Technology Transfer Act of 1986 (15 U.S.C. 3710a), relating to the 
transfer of Federal technology to the marketplace; and section 12(d) of 
the National Technology Transfer and Advancement Act of 1996 (Pub. L. 
104-113), as implemented by OMB Circular A-119: Federal Participation in 
the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities.
    (4) Serve as Chair and Executive Secretary of the Department of 
Transportation's Research, Development and Technology Planning Council 
and Planning Team.
    (5) Advocate Department of Transportation policy and program 
coordination efforts associated with transportation research.
    (6) Represent the Department of Transportation on departmental, 
national and international committees and meetings dealing with 
transportation research and development (R & D).
    (7) Manage the strategic planning process for transportation R & D 
across the Department of Transportation and, through the National 
Science and Technology Council, across the Federal Government.
    (8) Carry out the transportation research and development strategic 
planning function vested in the Secretary by 23 U.S.C. 508.
    (9) Conduct transportation system-level assessments and policy 
research.
    (10) Facilitate the creation of transportation public/private 
partnerships.
    (11) Foster innovation in the transportation sector.
    (12) Disseminate information on departmental, national, and 
international transportation R & D activities.
    (13) Provide legal support for Departmental intellectual property 
and patent issues.
    (14) Manage department- and government-wide (inter/multimodal) 
transportation R & D programs.
    (15) Oversee such advisory boards that deal with transportation 
system-level R & D assessments and issues, such as the Transportation 
Research Board Committee on the Federal Transportation R & D Strategic 
Planning Process.
    (c) Advanced vehicle technology. Carry out the functions vested in 
the Secretary by section 5111 of the Transportation Equity Act for the 
21st Century (49 U.S.C. 5506), as extended by the Surface Transportation 
Extension Act of 2004, Part V, Public Law 108-310, September 30, 2004, 
118 Stat. 1144, and section 5513(j) of SAFETEA-LU.
    (d) Remote sensing technology. Carry out the functions vested in the 
Secretary by section 5113 of the Transportation Equity Act for the 21st 
Century (23 U.S.C. 502 Note), as extended by the Surface Transportation 
Extension Act

[[Page 50]]

of 2004, Part V, Public Law 108-310, September 30, 2004, 118 Stat. 1144, 
and section 5506 of SAFETEA-LU.
    (e) University transportation research. Carry out the functions 
vested in the Secretary by section 5110 of the Transportation Equity Act 
for the 21st Century (49 U.S.C. 5505), as extended by the Surface 
Transportation Extension Act of 2004, Part V, Public Law 108-310, 
September 30, 2004, 118 Stat. 1144, and sections 5401 and 5402 of 
SAFETEA-LU.
    (f) Volpe National Transportation Systems Center. Exercise the 
authority vested in the Secretary with respect to the activities of the 
Volpe National Transportation Systems Center as described in 49 U.S.C. 
112(d)(1)(E) and carry out the functions vested in the Secretary by 49 
U.S.C. 328 with respect to the working capital fund for financing the 
activities of the Volpe National Transportation Systems Center.
    (g) Exercise authority over the Transportation Safety Institute.
    (h) Carry out the functions vested in the Secretary by 49 U.S.C. 111 
relating to transportation statistics, analysis, and reporting.
    (i) Carry out the functions vested in the Secretary by 49 U.S.C. 
5503(d) (Office of Intermodalism).
    (j) Aviation information. (1) Carry out the functions vested in the 
Secretary by 49 U.S.C. 329(b)(1) relating to the collection and 
dissemination of information on civil aeronautics.
    (2) Carry out the functions vested in the Secretary by section 
4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-
443) relating to the reporting of the extension of unsecured credit to 
political candidates (section 401, Federal Election Campaign Act of 
1971; 2 U.S.C. 451), in conjunction with the General Counsel and the 
Assistant Secretary for Aviation and International Affairs.
    (3) Carry out the functions vested in the Secretary by: 49 U.S.C. 
40113 (relating to taking such actions and issuing such regulations as 
may be necessary to carry out its air commerce and safety 
responsibilities), 49 U.S.C. 41702 (relating to the duty of carriers to 
provide safe and adequate service), 49 U.S.C. 41708 and 41709 (relating 
to the requirement to keep information and the forms in which it is to 
be kept), and 49 U.S.C. 41701 (relating to establishing just and 
reasonable classifications of carriers and rules to be followed by each) 
as appropriate to carry out the responsibilities under this paragraph in 
conjunction with the General Counsel and the Assistant Secretary for 
Aviation and International Affairs.
    (k) Hazardous materials information. In coordination with the Under 
Secretary, work with the Operating Administrations to determine data 
needs, collection strategies, and analytical techniques appropriate for 
implementing 49 U.S.C. 5101 et seq.
    (l) Carry out the functions vested in the Secretary by section 
1801(e) of SAFETEA-LU (establishing and maintaining a national ferry 
database).
    (m) Carry out the functions vested in the Secretary by section 
5513(c), (d), (g), (h), (i), (l), and (m) of SAFETEA-LU (establishing 
various research grants).
    (n) Carry out the functions vested in the Secretary by section 
5201(m) of SAFETEA-LU (biobased transportation research program).
    (o) Carry out the functions vested in the Secretary by 23 U.S.C. 509 
(establishing and supporting a national cooperative freight 
transportation research program).
    (p) Positioning, navigation and timing (PNT) and spectrum 
management. Carry out the functions described in the Secretarial memo of 
August 1, 2007, ``Positioning, Navigation and Timing (PNT) and Spectrum 
Management Realignment under the Research and Innovative Technology 
Administration (RITA).''
    (q) Carry out the Secretary's authority to establish, operate and 
manage the Nationwide Differential Global Positioning System (NDGPS) as 
described in Section 346 of Public Law 105-66 (Department of 
Transportation and Related Agencies Appropriations Act of 1998).



Sec.  1.100  The Saint Lawrence Seaway Development Corporation.

    Is responsible for the development, operation, and maintenance of 
that part of the Saint Lawrence Seaway within the territorial limits of 
the United States.

[[Page 51]]



Sec.  1.101  Delegations to the Saint Lawrence Seaway Development Corporation Administrator.

    The Administrator of the Saint Lawrence Seaway Development 
Corporation is delegated authority to:
    (a) Carry out the functions vested in the Secretary by sections 4, 
5, 6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of 
1978 (Pub. L. 95-474, 92 Stat. 1471) [33 U.S.C. 1223-1225, 1227, and 
1231-1232] as they relate to the operation of the Saint Lawrence Seaway.
    (b) Carry out the functions vested in the Secretary by section 5 and 
section 8(a) of the International Bridge Act of 1972 (Pub. L. 92-434, 86 
Stat. 731) [33 U.S.C. 535c and 535e(a)] as it relates to the Saint 
Lawrence River.
    (c) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships [33 U.S.C. 1902e] as it 
relates to ships owned or operated by the Corporation when engaged in 
noncommercial service.



Sec. Appendix A to Part 1--Delegations and Redelegations by Secretarial 
                                Officers

    1. Director of Budget. The Assistant Secretary for Budget and 
Programs and CFO has redelegated to the Director of Budget authority 
to--
    (a) Request apportionment and reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (b) Issue allotments or allocations of funds to components of the 
Department.
    2. Chief Counsels. The General Counsel has delegated to the Chief 
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17658, 
November 17, 1970, as follows:
    Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to 
delegate to other departments and agencies his authority to give written 
approval of the sufficiency to the title to land being acquired by the 
United States. The Attorney General has delegated to the Assistant 
Attorney General in charge of the Land and Natural Resources Division 
the authority to make delegations under that law to other Federal 
departments and agencies (28 CFR 0.66). The Assistant Attorney General, 
Land and Natural Resources Division, has further delegated certain 
responsibilities in connection with the approval of the sufficiency of 
the title to land to the Department of Transportation as follows:

 Delegation to the Department of Transportation for the Approval of the 
        Title to Lands Being Acquired for Federal Public Purposes

    Pursuant to the provision of Public Law 91-393, approved September 
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting 
under the provisions of Order No. 440-70 of the Attorney General, dated 
October 2, 1970, the responsibility for the approval of the sufficiency 
of the title to land for the purpose for which the property is being 
acquired by purchase or condemnation by the United States for the use of 
your Department is, subject to the general supervision of the Attorney 
General and to the following conditions, hereby delegated to your 
Department.
    This delegation of authority is further subject to:
    1. Compliance with the regulations issued by the Assistant Attorney 
General on October 2, 1970, a copy of which is enclosed.
    2. This delegation is limited to:
    (a) The acquisition of land for which the title evidence, prepared 
in compliance with these regulations, consists of a certificate of 
title, title insurance policy, or an owner's duplicate Torrens 
certificate of title.
    (b) The acquisition of lands valued at $100,000 or less, for which 
the title evidence consists of abstracts of title or other types of 
title evidence prepared in compliance with said regulations.
    As stated in the above-mentioned Act, any Federal department or 
agency which has been delegated the responsibility to approve land 
titles under the Act may request the Attorney General to render his 
opinion as to the validity of the title to any real property or interest 
therein, or may request the advice or assistance of the Attorney General 
in connection with determinations as to the sufficiency of titles.
    The Chief Counsels of the Federal Aviation Administration, Federal 
Highway Administration, Federal Railroad Administration, National 
Highway Traffic Safety Administration, Federal Transit Administration, 
the Saint Lawrence Seaway Development Corporation, Maritime 
Administration, and Research and Innovative Technology Administration 
are hereby authorized to approve the sufficiency of the title to land 
being acquired by purchase or condemnation by the United States for the 
use of their respective organizations. This delegation is subject to the 
limitations imposed by the Assistant Attorney General, Land and Natural 
Resources Division, in his delegation to the Department

[[Page 52]]

of Transportation. Redelegation of this authority may only be made by 
the Chief Counsels to attorneys within their respective organizations.
    If the organization does not have an attorney experienced and 
capable in the examination of title evidence, a Chief Counsel may, with 
the concurrence of the General Counsel, request the Attorney General to 
(1) furnish an opinion as to the validity of a title to real property or 
interest therein, or (2) provide advice or assistance in connection with 
determining the sufficiency of the title.



PART 3_OFFICIAL SEAL--Table of Contents



    Authority: 49 U.S.C. 102(e).

    Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise 
noted.



Sec.  3.1  Description.

    The official seal of the Department of Transportation is described 
as follows: A white abstract triskelion figure signifying motion appears 
within a circular blue field. The figure is symmetrical. The three 
branches of the figure curve outward in a counter-clockwise direction, 
each tapering almost to a point at the edge of the field. Surrounding 
the blue circle is a circular ring of letters. The upper half of the 
ring shows the words ``Department of Transportation''. The lower half of 
the ring shows the words ``United States of America''. The letters may 
be shown in either black or medium gray. The official seal of the 
Department is modified when embossed. It appears below in black and 
white.
[GRAPHIC] [TIFF OMITTED] TC02FE91.096



PART 5_RULEMAKING PROCEDURES--Table of Contents



                            Subpart A_General

Sec.
5.1 Applicability.
5.3 Initiation of rulemaking.
5.5 Participation by interested persons.
5.7 Regulatory docket.

            Subpart B_Petitions for Rulemaking or Exemptions

5.11 Filing of petitions.
5.13 Processing of petitions.

                          Subpart C_Procedures

5.21 General.
5.23 Contents of notices.
5.25 Petitions for extension of time to comment.
5.27 Consideration of comments received.
5.29 Additional rulemaking proceedings.
5.31 Hearings.
5.33 Adoption of final rules.
5.35 Procedures for direct final rulemaking.

Appendix A to Part 5

    Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).

    Source: 32 FR 10363, July 14, 1967, unless otherwise noted.



                            Subpart A_General



Sec.  5.1  Applicability.

    (a) This part prescribes general rulemaking procedures that apply to 
the issuance, amendment, and repeal of rules of the Office of the 
Secretary of Transportation. It does not apply to rules issued by the 
Federal Aviation Administration, Federal Highway Administration, Federal 
Railroad Administration, Federal Transit Administration, Maritime 
Administration, National Highway Traffic Safety Administration, Research 
and Special Programs Administration, St. Lawrence Seaway Development 
Corporation, or Federal Motor Carrier Safety Administration.
    (b) For the purposes of this part, Secretary means the Secretary of 
Transportation or the Under Secretary of Transportation, or any of the 
following to whom the Secretary has delegated authority to conduct 
rulemaking proceedings:
    (1) Any Assistant Secretary.

[[Page 53]]

    (2) The General Counsel.

Any of these officers may redelegate that authority to the head of any 
office who reports to him.
    (c) Records relating to rulemaking proceedings are available for 
inspection as provided in part 7 of this subtitle.

[32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar. 
31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971; 69 FR 4457, Jan. 30, 
2004]



Sec.  5.3  Initiation of rulemaking.

    The Secretary initiates rulemaking on his own motion. However, in 
doing so, he may, in his discretion, consider the recommendations of 
other agencies of the United States and of other interested persons.



Sec.  5.5  Participation by interested persons.

    Any person may participate in rulemaking proceedings by submitting 
written information or views. The Secretary may also allow any person to 
participate in additional rulemaking proceedings, such as informal 
appearances or hearings, held with respect to any rule.



Sec.  5.7  Regulatory docket.

    (a) Records of the Office of the Secretary of Transportation 
concerning rulemaking actions, including notices of proposed rule 
making, comments received in response to those notices, petitions for 
rulemaking or exemption, petitions for rehearing or reconsideration, 
grants and denials of exemptions, denials of petitions for rule making, 
and final rules are maintained in current docket form in the Office of 
the General Counsel.
    (b) Any person may examine any docketed material at that office and 
may obtain a copy of any docketed material upon payment of the 
prescribed fee.



            Subpart B_Petitions for Rulemaking or Exemptions



Sec.  5.11  Filing of petitions.

    (a) Any person may petition the Secretary to issue, amend, or repeal 
a rule, or for a permanent or temporary exemption from any rule.
    (b) Each petition filed under this section must:
    (1) Be submitted in duplicate to the Docket Clerk, Office of the 
General Counsel, Department of Transportation, Washington, DC 20590;
    (2) Set forth the text or substance of the rule or amendment 
proposed, or of the rule from which the exemption is sought, or specify 
the rule that the petitioner seeks to have repealed, as the case may be;
    (3) Explain the interest of the petitioner in the action requested 
including, in the case of a petition for an exemption, the nature and 
extent of the relief sought and a description of the persons to be 
covered by the exemption;
    (4) Contain any information and arguments available to the 
petitioner to support the action sought; and
    (5) In the case of a petition for exemption, unless good cause is 
shown in that petition, be submitted at least 60 days before the 
proposed effective date of the exemption.



Sec.  5.13  Processing of petitions.

    (a) General. Each petition received under Sec.  5.11 of this part is 
referred to the head of the office responsible for the subject matter of 
that petition. No public hearing, argument, or other proceeding is held 
directly on a petition before its disposition under this section.
    (b) Grants. If the Secretary determines that the petition contains 
adequate justification, he initiates rulemaking action under subpart C 
of this part or grants the exemption, as the case may be.
    (c) Denials. If the Secretary determines that the petition does not 
justify initiating rule-making action or granting the exemption, he 
denies the petition.
    (d) Notification. Whenever the Secretary determines that a petition 
should be granted or denied, the office concerned and the Office of the 
General Counsel prepare a notice of that grant or denial for issuance to 
the petitioner, and the Secretary issues it to the petitioner.

[[Page 54]]



                          Subpart C_Procedures



Sec.  5.21  General.

    (a) Unless the Secretary finds, for good cause, that notice is 
impractical, unnecessary, or contrary to the public interest, a notice 
of proposed rule making is issued and interested persons are invited to 
participate in the rulemaking proceedings with respect to each 
substantive rule.
    (b) Unless the Secretary determines that notice and public 
rulemaking proceedings are necessary or desirable, interpretive rules, 
general statements of policy, and rules relating to organization, 
procedure, or practice are prescribed as final without notice or other 
public rulemaking proceedings.
    (c) In his discretion, the Secretary may invite interested persons 
to participate in the rulemaking proceedings described in Sec.  5.29 of 
this subpart.
    (d) For rules for which the Secretary determines that notice is 
unnecessary because no adverse public comment is anticipated, the direct 
final rulemaking procedure described in Sec.  5.35 of this subpart may 
be followed.

[32 FR 10363, July 14, 1967, as amended at 69 FR 4458, Jan. 30, 2004]



Sec.  5.23  Contents of notices.

    (a) Each notice of proposed rulemaking is published in the Federal 
Register, unless all persons subject to it are named and are personally 
served with a copy of it.
    (b) Each notice, whether published in the Federal Register or 
personally served, includes:
    (1) A statement of the time, place, and nature of the proposed rule-
making proceeding;
    (2) A reference to the authority under which it is issued;
    (3) A description of the subjects or issues involved or the 
substance or terms of the proposed rule;
    (4) A statement of the time within which written comments must be 
submitted and the required number of copies; and
    (5) A statement of how and to what extent interested persons may 
participate in the proceeding.



Sec.  5.25  Petitions for extension of time to comment.

    (a) Any person may petition the Secretary for an extension of time 
to submit comments in response to a notice of proposed rulemaking. The 
petition must be submitted in duplicate not later than 3 days before 
expiration of the time stated in the notice. The filing of the petition 
does not automatically extend the time for petitioner's comments.
    (b) The Secretary grants the petition only if the petitioner shows a 
substantive interest in the proposed rule and good cause for the 
extension, and if the extension is in the public interest. If an 
extension is granted, it is granted as to all persons and is published 
in the Federal Register.



Sec.  5.27  Consideration of comments received.

    All timely comments are considered before final action is taken on a 
rule-making proposal. Late filed comments may be considered so far as 
possible without incurring additional expense or delay.



Sec.  5.29  Additional rulemaking proceedings.

    The Secretary may initiate any further rulemaking proceedings that 
he finds necessary or desirable. For example, he may invite interested 
persons to present oral arguments, participate in conferences, appear at 
informal hearings, or participate in any other proceeding.



Sec.  5.31  Hearings.

    (a) Sections 556 and 557 of title 5, United States Code, do not 
apply to hearings held under this part. As a fact-finding proceeding, 
each hearing is nonadversary and there are no formal pleadings or 
adverse parties. Any rule issued in a case in which a hearing is held is 
not necessarily based exclusively on the record of the hearing.
    (b) The Secretary designates a representative to conduct any hearing 
held under this part. The General Counsel designates a member of his 
staff to serve as legal officer at the hearing.

[[Page 55]]



Sec.  5.33  Adoption of final rules.

    Final rules are prepared by representatives of the office concerned 
and the Office of the General Counsel. The rule is then submitted to the 
Secretary for his consideration. If the Secretary adopts the rule, it is 
published in the Federal Register, unless all persons subject to it are 
named and are personally served with a copy of it.



Sec.  5.35  Procedures for direct final rulemaking.

    (a) Rules that the Secretary judges to be noncontroversial and 
unlikely to result in adverse public comment may be published as direct 
final rules. These include noncontroversial rules that:
    (1) Affect internal procedures of the Office of the Secretary, such 
as filing requirements and rules governing inspection and copying of 
documents,
    (2) Are nonsubstantive clarifications or corrections to existing 
rules,
    (3) Update existing forms,
    (4) Make minor changes in the substantive rules regarding statistics 
and reporting requirements,
    (5) Make changes to the rules implementing the Privacy Act, and
    (6) Adopt technical standards set by outside organizations.
    (b) The Federal Register document will state that any adverse 
comment or notice of intent to submit adverse comment must be received 
in writing by the Office of the Secretary within the specified time 
after the date of publication and that, if no written adverse comment or 
written notice of intent to submit adverse comment is received, the rule 
will become effective a specified number of days after the date of 
publication.
    (c) If no written adverse comment or written notice of intent to 
submit adverse comment is received by the Office of the Secretary within 
the specified time of publication in the Federal Register, the Office of 
the Secretary will publish a notice in the Federal Register indicating 
that no adverse comment was received and confirming that the rule will 
become effective on the date that was indicated in the direct final 
rule.
    (d) If the Office of the Secretary receives any written adverse 
comment or written notice of intent to submit adverse comment within the 
specified time of publication in the Federal Register, a notice 
withdrawing the direct final rule will be published in the final rule 
section of the Federal Register and, if the Office of the Secretary 
decides a rulemaking is warranted, a notice of proposed rulemaking will 
be published in the proposed rule section of the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means any 
comment that the Office of the Secretary determines is critical of the 
rule, suggests that the rule should not be adopted, or suggests a change 
that should be made in the rule. A comment suggesting that the policy or 
requirements of the rule should or should not also be extended to other 
Departmental programs outside the scope of the rule is not adverse.

[69 FR 4458, Jan. 30, 2004]



                        Sec. Appendix A to Part 5

    Pursuant to Sec.  5.1(b), the following officials of the Office of 
the Secretary of Transportation are authorized to conduct rulemaking 
proceedings under this part, as specified in this appendix:
    (1) The General Counsel is authorized to conduct all rule-making 
proceedings, except the issuance of final rules, under the Act of March 
19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act 
of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section 6(e)(5) of the 
Department of Transportation Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).
    (2) The General Counsel is authorized to determine the 
practicability of applying the standard time of any standard time zone 
to the movements of any common carrier engaged in interstate or foreign 
commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as 
amended (15 U.S.C. 262), to issue operating exceptions in any case in 
which he determines that it is impractical to apply the standard time.

[Amdt. 5-1, 32 FR 11473, Aug. 9, 1967]



PART 6_IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS--Table of Contents



                      Subpart A_General Provisions

Sec.
6.1 Purpose of these rules.
6.3 Applicability.
6.5 Proceedings covered.
6.7 Eligibility of applications.

[[Page 56]]

6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.

             Subpart B_Information Required from Applicants

6.17 Contents of application.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses.

            Subpart C_Procedures for Considering Applications

6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.

    Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

    Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  6.1  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 
government agencies, such as the Department of Transportation or any of 
its operating administrations. The rules in this part describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that this agency will use to make them. The use of the term 
``Department'', in this rule, will be understood to mean the Department 
of Transportation or any of its operating administrations, unless 
otherwise specified. The term ``agency counsel'' will be understood to 
mean counsel for the Department of Transportation or any of its 
operating administrations.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]



Sec.  6.3  Applicability.

    Section 6.9(a) applies to any adversary adjudication pending before 
the Department on or after October 1, 1981. In addition, applicants for 
awards must also meet the standards of Sec.  6.9(b) for any adversary 
adjudication commenced on or after March 29, 1996.

[62 FR 19233, Apr. 21, 1997]



Sec.  6.5  Proceedings covered.

    (a) The Act applies to adversarial adjudications conducted by the 
Department of Transportation. These are adjudications under 5 U.S.C. 554 
in which the position of the Department is represented by an attorney or 
other representative who enters an appearance and participates in the 
proceeding. Coverage of the Act begins at designation of a proceeding or 
issuance of a charge sheet. Any proceeding in which the Department may 
prescribe or establish 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.'' For the Department of 
Transportation, the types of proceedings covered include, but may not be 
limited to: National Highway Traffic Safety Administration (NHTSA) 
automotive fuel economy enforcement under 49 CFR part 511; Federal Motor 
Carrier Safety Administration (FMCSA) enforcement of motor carrier 
safety regulations under 49 CFR 386; and the Department's aviation 
economic enforcement proceedings conducted by its Office of Aviation 
Enforcement and Proceedings pursuant to 14 CFR Chapter II. Also covered 
is any hearing conducted under Chapter 38 of title 31 of the U.S. Code 
or the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et 
seq.).
    (b) 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.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997; 81 
FR 71385, Oct. 17, 2016]



Sec.  6.7  Eligibility of applications.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party

[[Page 57]]

to an adversary adjudication for which it seeks an award. The term 
``party'' is defined in 5 U.S.C. 504(b)(1)(B). The applicant must show 
that it meets all conditions of eligibility set out in this subpart and 
in paragraph (b) of this section.
    (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 as 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 a net worth of not 
more than $5 million and not more than 500 employees.
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $7 million and 
not more than 500 employees.
    (6) For the purposes of Sec.  6.9(b), eligible applicants include 
small entities as defined in 5 U.S.C. 601.
    (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 designated.
    (d) An applicant who owns an unincorporated business will be 
considered 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 number of employees of an applicant includes 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 administrative law judge 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 
administrative law judge 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 or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (h) An applicant who appears pro se in a proceeding is ineligible 
for award of attorney fees. However, eligibility for other expenses is 
not affected by pro se representation.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred by that party in connection with a decision in favor of the 
applicant in a proceeding covered by this Part, unless the position of 
the Department over which the applicant has prevailed was substantially 
justified or special circumstances make the award sought unjust. The 
burden of proof that an award should not be made to an eligible 
applicant is on the Department where it has initiated the proceeding. No 
presumption arises that the Department's position was not substantially 
justified simply because the Department did not prevail. Whether or not 
the position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, in the 
adversary adjudication for which fees and other expenses are

[[Page 58]]

sought. The ``position of the Department'' means, in addition to the 
position taken by the agency in the adversary adjudication, the action 
or failure to act by the Department upon which the adversary 
adjudication may be based.
    (b) In the context of a Departmental proceeding to enforce a party's 
compliance with a statutory or regulatory requirement, if the demand by 
the Department is substantially in excess of the amount awarded to the 
government pursuant to the decision of the adjudicative officer and is 
unreasonable when compared with such decision, under the facts and 
circumstances of the case, the adjudicative officer shall award to an 
eligible applicant party the fees and expenses related to defending 
against the excessive demand, unless the applicant party has committed a 
willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Fees and expenses awarded under this 
paragraph shall be paid only as a consequence of appropriations provided 
in advance. As used in this section, ``demand'' means the express demand 
of the Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory penalty
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[62 FR 19234, Apr. 21, 1997]



Sec.  6.11  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents or expert 
witnesses.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $125.00 per hour. This amount shall include all other 
expenses incurred by the attorney or agent in connection with the case. 
No award to compensate an expert witness may exceed the highest market 
rate at which the Department pays expert witnesses, or $24.09 per hour, 
whichever is less.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the administrative law judge 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 proceeding; 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.
    (e) Fees may be awarded only for work performed after designation of 
a proceeding.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.13  Delegations of authority.

    The Secretary of Transportation delegates to the head of each 
operating administration of this Department the authority to take final 
action, other than rulemaking, on matters pertaining to the Act in 
actions that require section 554 proceedings. The head of each operating 
administration may redelegate this authority.



             Subpart B_Information Required from Applicants



Sec.  6.17  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.

[[Page 59]]

The application shall show that the applicant has prevailed and identify 
the position of an agency or agencies in the proceeding that the 
applicant alleges was not substantially justified. Unless the applicant 
is an individual, the application shall also state that it did not have 
more than 500 employees at the time the proceeding was initiated, giving 
the number of employees of the applicant and describing 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 $1 million (if an individual) or 
$5 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. 114j(a)).
    (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 this agency 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.
    (f) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.



Sec.  6.19  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 this part) when the proceeding was designated. If any 
individual, corporation, or other entity directly or indirectly controls 
or owns a majority of the voting shares or other interest of the 
applicant, or if the applicant directly or indirectly owns or controls a 
majority of the voting shares or other interest of any corporation or 
other entity, the exhibit must include a showing of the net worth of all 
such affiliates or of the applicant including the affiliates. 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 subpart. The administrative law 
judge may require an applicant to file additional information to 
determine its eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period prior to the date on which the 
proceeding was initiated, that reduced the net worth of the applicant 
and its affiliates below the applicable net worth ceiling. If there were 
no such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.



Sec.  6.21  Documentation of fees and expenses.

    (a) 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.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating

[[Page 60]]

the actual time expended and the rate at which fees and other expenses 
were computed and describing the specific services performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The administrative law judge may require the applicant to 
provide vouchers, receipts, or other substantiation for any expenses 
claimed.
    (e) The administrative law judge may, within his or her discretion, 
make a determination as to whether a study, conducted by the applicant, 
was necessary to the preparation of the applicant's case.



            Subpart C_Procedures for Considering Applications



Sec.  6.23  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.



Sec.  6.25  Answer to application.

    (a) Within 30 calendar days after service of an application, the 
agency counsel may file an answer to the application. Unless the agency 
counsel requests an extension of time for filing or files a statement of 
intent to negotiate under paragraph (b) of this section, failure to file 
an answer within the 30-day period may be treated as a consent to the 
award request.
    (b) If agency counsel and applicant believe that they can reach a 
settlement concerning the award, the agency counsel may file a statement 
of intent to negotiate. The filing of such a statement shall extend the 
time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the 
Department's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, the Department shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  6.3.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.27  Comments by other parties.

    Any party to a proceeding, other than the applicant and the 
Department may file comments on an application within 30 days after it 
is served or on an answer within 15 days after it is served. A 
commenting party may not participate further in proceedings on the 
application.



Sec.  6.29  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 
agency's standard settlement procedure. If a prevailing party and the 
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.



Sec.  6.31  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 administrative 
law judge may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or an evidentiary hearing.

[[Page 61]]


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.
    (b) A request that the administrative law judge 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.



Sec.  6.33  Decision.

    The administrative law judge shall issue an initial decision on the 
application as soon as possible after completion of proceedings on the 
application. 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 or any award made among the agencies, and shall explain the 
reasons for the allocation made.



Sec.  6.35  Agency review.

    Where Department review of the underlying decision is permitted, 
either the applicant or agency counsel, may seek review of the initial 
decision on the fee application, or the Department may decide to review 
the decision on its own initiative. If neither the applicant nor the 
agency counsel seeks review within 30 days after the decision is issued, 
it shall become final.



Sec.  6.37  Judicial review.

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



Sec.  6.39  Payment of award.

    An applicant seeking payment of an award from the Department of 
Transportation or any of its operating administrations under this part 
shall submit a copy of the Department of Transportation's or any of its 
operating administration's final decisions granting the award, 
accompanied by a statement that the applicant will not seek review of 
the decision in the United States courts. The copy of the decision and 
the statement should be submitted to the head of the affected operating 
administration or the Secretary of Transportation, where the Department 
of Transportation, Office of the Secretary, has initiated the 
proceedings.



PART 7_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents



                      Subpart A_General Provisions

Sec.
7.1 General.
7.2 Definitions.

         Subpart B_Information Required To Be Made Public by DOT

7.11 What records are published in the Federal Register, and how are 
          they accessed?
7.12 What records are available in reading rooms, and how are they 
          accessed?
7.13 How are copies of publicly available records obtained?
7.14 Redaction of Information That is Exempt from Disclosure.
7.15 Protection of Records.

         Subpart C_Availability of Reasonably Described Records

                  Under the Freedom of Information Act

7.21 What does this subpart cover?
7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
7.24 How do I submit a FOIA request?
7.25 How does DOT handle first-party requests?
7.26 To what extent and in what format are records searched and made 
          available?
7.27 What are the designated DOT FOIA Requester Service Centers?
7.28 How does DOT handle requests that concern more than one Government 
          agency?
7.29 When and how does DOT consult with submitters of commercial 
          information?

                          Subpart D_Time Limits

7.31 What time limits apply to DOT with respect to initial 
          determinations?
7.32 What time limits apply to a requester when appealing DOT's initial 
          or final determination?
7.33 What time limits apply to DOT with respect to administrative 
          appeals (final determinations)?
7.34 When and how are time limits applicable to DOT extended?
7.35 When and how is the twenty day time limit for rendering an initial 
          determination tolled?

[[Page 62]]

                             Subpart E_Fees

7.41 When and how are processing fees imposed for records that are made 
          available under subpart B or processed under subpart C of this 
          part?
7.42 What is DOT's fee schedule for records requested under subpart C of 
          this part?
7.43 When are fees waived or reduced for records requested under subpart 
          C of this part?
7.44 How can I pay a processing fee for records requested under subpart 
          B or subpart C of this part?
7.45 When are pre-payments required for records requested under subpart 
          C of this part, and how are they handled?
7.46 How are late payments handled?

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600; 
E.O. 13392.

    Source: 79 FR 16209, Mar. 25, 2014, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  7.1  General.

    (a) This part implements the Freedom of Information Act, 5 U.S.C. 
552, as amended, and prescribes rules governing the public availability 
of Department of Transportation (DOT) records.
    (b) Subpart B of this part contains the DOT regulations concerning 
the public availability of:
    (1) Records and indices that DOT is required to publish in the 
Federal Register pursuant to 5 U.S.C. 552(a)(1) (described in Sec.  
7.11(a)); and
    (2) Records and indices that DOT is required to make available to 
the public in a reading room without need for a specific request, 
pursuant to 5 U.S.C. 552(a)(2) (described in Sec.  7.12(a)).
    (c) Subpart C of this Part contains the DOT regulations concerning 
records that may be requested from DOT under the FOIA, namely, records 
that DOT is not required to publish in the Federal Register or make 
publicly available in a reading room under 5 U.S.C. 552(a)(2)(A), (B), 
(C), and (E) and frequently requested records even if DOT has made them 
publicly available as required under 5 U.S.C. 552(a)(2)(D). Because DOT 
and its components make many of these records available on their Web 
pages (http://www.dot.gov or http://www.dot.gov/foia), requesters may 
find it preferable to obtain such records directly from the Web pages 
instead of submitting a FOIA request, if the Web pages contain records 
that meet their needs.
    (d) Subpart D of this part contains the DOT regulations concerning 
time limits applicable to processing requests for records under subpart 
C.
    (e) Subpart E of this part contains the DOT regulations concerning 
processing fees applicable to records made available under subpart B or 
requested under subpart C.



Sec.  7.2  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Administrator means the head of each Operating Administration.
    Components--see the definition of Department in this section.
    Concurrence means that the approval of the individual being 
consulted is required in order for the subject action to be taken.
    Confidential commercial information means trade secrets and 
confidential, privileged, and/or proprietary business or financial 
information submitted to DOT by any person.
    Consultation has its ordinary meaning; the approval of the 
individual being consulted is not required in order for the subject 
action to be taken.
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary, the Office of Inspector General, and all 
DOT Operating Administrations, any of which may be referred to as a DOT 
component.
    First-party request means a request by an individual for records 
pertaining to that individual.
    Hourly rate means the actual hourly base pay for a civilian 
employee.
    Operating Administration means one of the following components of 
the Department:
    (1) Federal Aviation Administration;
    (2) Federal Highway Administration;
    (3) Federal Motor Carrier Safety Administration;
    (4) Federal Railroad Administration;
    (5) Federal Transit Administration;
    (6) Maritime Administration;

[[Page 63]]

    (7) National Highway Traffic Safety Administration;
    (8) Pipeline and Hazardous Materials Safety Administration; and
    (9) Saint Lawrence Seaway Development Corporation.
    Reading room records are those records required to be made available 
to the public without a specific request under 5 U.S.C. 552(a)(2), as 
described in Sec.  7.12.
    Record includes any writing, drawing, map, recording, diskette, DVD, 
CD-ROM, tape, film, photograph, or other documentary material, 
regardless of medium, by which information is preserved. The term also 
includes any such documentary material stored electronically by 
computer.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
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. ``News'' means 
information that is about current events or that would be of current 
interest to the public.
    Responsible DOT official means the head of the DOT Operating 
Administration concerned, or the General Counsel or the Inspector 
General, as the case may be, or the designee of any of them authorized 
to take an action under this Part.
    Secretary means the Secretary of Transportation or any individual to 
whom the Secretary has delegated authority in the matter concerned.
    Toll means temporarily stop the running of a time limit.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



         Subpart B_Information Required To Be Made Public by DOT



Sec.  7.11  What records are published in the Federal Register, and how are they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(1), DOT publishes the 
following records in the Federal Register and makes an index of the 
records publicly available. For purposes of this paragraph, material 
that is reasonably available to the class of persons affected by the 
material is considered to be published in the Federal Register when the 
material is incorporated by reference with the approval of the Director 
of the Federal Register.
    (1) Descriptions of DOT's organization and the established places at 
which, the officers from whom, and the methods by which, the public may 
secure information and make submittals or obtain decisions;
    (2) Statements of the general course and methods by which DOT's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as authorized 
by law and statements of general policy or interpretations of general 
applicability formulated and adopted by DOT; and
    (5) Each amendment, revision, or repeal of any material listed in 
paragraphs (a)(1) through (4) of this section.
    (b) Federal Register locations. DOT makes its Federal Register 
publications and indices publicly available at the physical locations 
identified in Sec.  7.12(b). The publications and indices can be 
accessed online at http://www.federalregister.gov.



Sec.  7.12  What records are available in reading rooms, and how are they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(2), unless the following 
records are promptly published and offered for sale or published in the 
Federal Register, DOT and its components make the following records, and 
an index to the records, available in a reading room, including an 
electronic reading room if the records were created by DOT on or after 
November 1, 1996:
    (1) Final opinions, including concurring and dissenting opinions, as 
well as orders, made in the adjudication of cases;
    (2) Statements of policy and interpretations that have been adopted 
by DOT and are not published in the Federal Register;

[[Page 64]]

    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public; and
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this part and that:
    (i) Because of the nature of their subject matter, DOT determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records; or
    (ii) Have been requested three or more times.
    (5) A general index of the records listed in paragraph (a)(4) of 
this section.
    (b) Reading room locations. DOT makes its reading room records and 
indices (in the form of lists or links) available at https://
www.transportation.gov/foia. To the extent that DOT continues to make 
reading rooms available at a physical location, those locations are 
listed on the DOT FOIA Web site at https://www.transportation.gov/foia.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.13  How are copies of publicly available records obtained?

    (a) Copies of materials covered by this subpart that are published 
and offered for sale. Records that are ordinarily made available to the 
public as a part of an information program of the Government, such as 
news releases and pamphlets, may be obtained upon request by contacting 
the appropriate DOT location identified in Sec.  7.12(b) or the sources 
identified in Sec.  7.41(g), and paying the applicable duplication fee 
or purchase price. Whenever practicable, DOT also makes the publications 
available at the appropriate physical locations identified in Sec.  
7.12(b).
    (b) Copies of materials covered by this subpart that are not 
published and offered for sale. Such records may be ordered, upon 
payment of the appropriate fee (if any fee applies), through the 
applicable FOIA Requester Service Center or through the DOT Dockets 
Office identified in Sec.  7.12(b):
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means--US $0.10.
    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (3) Copies are certified upon request by contacting the applicable 
FOIA Requester Service Center listed in Sec.  7.27 and paying the fee 
prescribed in Sec.  7.41(e).



Sec.  7.14  Redaction of information that is exempt from disclosure.

    Whenever DOT determines it to be necessary to prevent the disclosure 
of information required or authorized to be withheld by FOIA or another 
Federal statute (such as, to prevent a clearly unwarranted invasion of 
personal privacy), DOT redacts such information from any record covered 
by this subpart that is published or made available. A full explanation 
of the justification for the deletion accompanies the record published 
or made available.



Sec.  7.15  Protection of records.

    Records made available to the public under this subpart may not be 
removed, altered, destroyed, or mutilated (this excludes duplicate 
copies that are provided to a member of the public to take and keep). 18 
U.S.C. 641 provides for criminal penalties for embezzlement or theft of 
Government records. 18 U.S.C. 2071 provides for criminal penalties for 
the willful and unlawful concealment, mutilation or destruction of, or 
the attempt to conceal, mutilate, or destroy, Government records.



Subpart C_Availability of Reasonably Described Records Under the Freedom 
                           of Information Act



Sec.  7.21  What does this subpart cover?

    (a) Except as otherwise provided in paragraph (b) of this section, 
this subpart applies to reasonably described records that are made 
available in response to written requests under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register.
    (2) Records published and offered for sale.
    (3) Records (other than frequently requested records) made available 
in a reading room.

[[Page 65]]

    (4) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec.  7.23(c)(7)(A) 
if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (5) Informant records maintained by any criminal law enforcement 
component of DOT under an informant's name or personal identifier, if 
requested by a third party according to the informant's name or personal 
identifier, unless the informant's status as an informant has been 
officially confirmed.



Sec.  7.22  Who administers this subpart?

    (a) A Chief FOIA Officer is appointed by the Secretary to oversee 
DOT's compliance with the Act pursuant to 5 U.S.C. 552(k). The DOT Chief 
FOIA Officer is designated at 49 CFR 1.27a as the Career Deputy General 
Counsel.
    (b) Each DOT FOIA Requester Service Center listed in Sec.  7.27 is 
the initial point of contact for providing information about its 
processing of requests.
    (c) One or more Public Liaisons are designated by the Chief FOIA 
Officer for each DOT FOIA Requester Service Center listed in Sec.  7.27. 
Public Liaisons assist requesters in reducing delays and resolving 
disputes, as described in 5 U.S.C. 552(k)(6).
    (d) Authority to administer this subpart and to issue determinations 
with respect to initial requests and appeals of initial denials has been 
delegated as follows:
    (1) To the General Counsel for the records of the Office of the 
Secretary by 49 CFR 1.27.
    (2) To the Inspector General for records of the Office of Inspector 
General by 49 CFR 1.74.
    (3) To the Administrator of each DOT Operating Administration for 
records of that component by 49 CFR 1.81.
    (4) Each responsible DOT official may redelegate the authority to 
issue final determinations of appeals of initial denials to that 
official's deputy or to not more than one other officer who reports 
directly to the official and who is located at the headquarters of that 
DOT component.
    (5) Any such final determination by an Administrator or an 
Administrator's designee (following an appeal of an initial denial) is 
subject to concurrence by the General Counsel or the General Counsel's 
designee, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a fee 
waiver or reduction.
    (6) The Inspector General or the Inspector General's designee must 
consult with the General Counsel or the General Counsel's designee 
before issuing a final determination following an appeal of an initial 
denial, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a fee 
waiver or reduction.



Sec.  7.23  What limitations apply to disclosure?

    (a) Policy. It is DOT policy to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
FOIA. This includes releasing reasonably segregable and meaningful 
nonexempt information in a document from which exempt information is 
withheld.
    (b) Statutory disclosure requirement. As provided in 5 U.S.C. 
552(a)(3)(A), DOT makes reasonably described records available upon 
request from a member of the public, when the request is submitted in 
accordance with this subpart, except to the extent that the records 
contain information exempt from FOIA's mandate of disclosure as provided 
in 5 U.S.C. 552(b).
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and are in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;

[[Page 66]]

    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act, 5 U.S.C. 552a, or Open Meetings Act, 5 U.S.C. 552b, as 
amended), in that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, establishes particular 
criteria for withholding, or refers to particular types of matters to be 
withheld; or
    (ii) Specifically allows withholding from release under FOIA by 
citation to 5 U.S.C. 552;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, tribal, or foreign agency 
or authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions, if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Application of exemptions. DOT shall withhold information 
pursuant to a statutory exemption only if:
    (1) DOT reasonably foresees that disclosure would harm an interest 
protected by an exemption under paragraph (c) of this section; or
    (2) Disclosure is prohibited by law or otherwise exempted from 
disclosure under paragraph (c)(3) of this section.
    (e) Redacted information. DOT indicates the amount of information 
redacted from records released under the FOIA and the exemption(s) 
relied upon in redacting the information, at the place in the record 
where the redaction is made, when technically feasible and when doing so 
does not harm an interest protected by the exemption concerned.
    (f) Non-confidentiality of requests. DOT releases the names of FOIA 
requesters and descriptions of the records they have sought, as shown on 
DOT FOIA logs, except to the extent that a statutory exemption 
authorizes or requires withholding of the log information.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017; 82 
FR 25740, June 5, 2017]



Sec.  7.24  How do I submit a FOIA request?

    (a) Each person desiring access to or a copy of a record covered by 
this subpart must make a written request (via paper, facsimile or 
electronic mail) for the record. The request should--
    (1) Indicate that it is being made under FOIA;

[[Page 67]]

    (2) Display the word ``FOIA'' prominently on the envelope or on the 
subject line of the email or facsimile;
    (3) Be addressed to the appropriate FOIA Requester Service Center as 
set forth in Sec.  7.27;
    (4) State the format (e.g., paper, compact disc) in which the 
information is sought, if the requester has a preference (see Sec.  
7.26(c)); and
    (5) Describe the record or records sought to the fullest extent 
possible. In this regard, the request should describe the subject matter 
of the record and, if known, indicate the date when it was made, the 
place where it was made, and the individual or office that made it. If 
the description does not enable the office handling the request to 
identify or locate the record sought, that office will contact the 
requester for additional information. So that the office may contact the 
requester for additional information, the request should provide the 
requester's complete contact information, including name, address, 
telephone number, and email address, if any.
    (b) With respect to fees, the request must--
    (1) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other; 
see Sec.  7.42(g)) in which the requester claims the request falls and 
the basis of this claim (see subpart E of this Part for fees and fee 
waiver requirements);
    (2) Support any request for fee waiver by addressing, to the fullest 
extent possible, how the criteria set out in Sec.  7.43(c) for 
establishing that the request is in the public interest have been met, 
if relevant;
    (3) State the maximum amount of fees that the requester is willing 
to pay and/or include a request for a fee waiver or reduction (if a 
maximum amount is not stated by the requester, DOT will assume the 
requester is willing to pay up to US $25);
    (c) If the requester seeks expedited processing at the time of the 
initial request, the request must include a statement supporting 
expedited processing, as set forth in Sec.  7.31(c);
    (d) A request is not considered to be a FOIA request if the record 
or records sought are insufficiently described such that DOT is unable 
to respond as required by FOIA. The twenty Federal working day limit for 
responding to requests, described in Sec.  7.31(a)(2), will not start to 
run until the request is determined by DOT to be sufficiently understood 
to enable DOT to respond as contemplated under FOIA (or would have been 
so determined with the exercise of due diligence by an employee of DOT) 
and is considered received (see paragraph (e)); and
    (e) Provided the request is considered to be a FOIA request (see 
paragraph (d)), the request is considered received when it is first 
received by the FOIA office to which it should have been originally 
sent, as shown in Sec.  7.27, but in any event not later than ten 
Federal working days after it is first received by any DOT FOIA 
Requester Service Center identified in Sec.  7.27.
    (f) As provided in Sec.  7.35, DOT's time limit for responding to a 
FOIA request as set forth in subpart D may be tolled one time to seek 
additional information needed to clarify the request and as often as 
necessary to clarify fee issues with the requester.



Sec.  7.25  How does DOT handle first-party requests?

    (a) DOT processes FOIA requests from first-party requesters in 
accordance with this regulation. DOT also processes such requests in 
accordance with the Privacy Act (5 U.S.C. 552a) if the records reside in 
a Privacy Act system of records (defined in 5 U.S.C. 552a(a)(5) as a 
system from which information is retrieved by the individual's name or 
some other personal identifier). Whichever statute provides greater 
access is controlling.
    (b) First party requesters must establish their identity to DOT's 
satisfaction before DOT will process the request under the Privacy Act. 
DOT may request that first party requesters authenticate their identity 
to assist with our evaluation of the application of FOIA exemptions, 
such as FOIA Exemption 6, 5 U.S.C. 552(b)(6), to the requested records. 
Acceptable methods of authenticating the requester's identity include 
those outlined in DOT's Privacy Act regulations at 49 CFR 10.37.

[[Page 68]]



Sec.  7.26  To what extent and in what format are records searched and made available?

    (a) Existing records. A request may seek only records that are in 
existence at the time of the request. In determining which records are 
responsive to a request, DOT ordinarily will include only records in its 
possession as of the date it begins its search for them. If any other 
date is used, DOT will inform the requester of that date. DOT considers 
records created after the beginning of the search to be non-responsive 
to a request. A request made under this subpart may not require that new 
records be created in response to the request by, for example, combining 
or compiling selected items from manual files, preparing a new computer 
program, or calculating proportions, percentages, frequency 
distributions, trends, or comparisons. DOT may, in its discretion, 
create a new record as an alternative to disclosing existing records, if 
DOT determines that creating a new record will be less burdensome than 
disclosing large volumes of unassembled material and if the requester 
consents to accept the newly-created record in lieu of the existing 
records.
    (b) Electronic records. DOT makes a reasonable effort to search 
electronic records without significantly interfering with the operation 
of the affected information system.
    (c) Format of production. DOT provides records in the form or format 
sought by the requester, if the records are readily reproducible in that 
form or format.
    (d) Photocopying of records. Original records ordinarily are copied 
except where, in DOT's judgment, copying would endanger the quality of 
the original or raise the reasonable possibility of irreparable harm to 
the record. Original records are not released from DOT custody. DOT may 
make records requested under this subpart available for inspection and 
copying during regular business hours at the place where the records are 
located.
    (e) If no responsive record is located. If DOT cannot locate a 
requested record in agency files after a reasonable search (e.g., 
because the record was never created or was disposed of), DOT so 
notifies the requester.



Sec.  7.27  What are the designated DOT FOIA Requester Service Centers?

    (a) A request for a record under this subpart may be submitted via 
paper, facsimile, or electronic mail to the FOIA Requester Service 
Center designated for the DOT component where the records are located, 
at the electronic mail addresses or facsimile numbers identified at 
https://www.transportation.gov/foia or the mailing addresses indicated 
below (unless a more up-to-date mailing address has been designated at 
https://www.transportation.gov/foia):
    (1) FOIA Requester Service Centers at 1200 New Jersey Avenue SE., 
Washington, DC 20590:
    (i) FOIA Requester Service Center at Federal Highway Administration, 
Room E64-302 (unless a more specific address has been designated by FHWA 
at http://www.fhwa.dot.gov/foia);
    (ii) FOIA Requester Service Center at Federal Motor Carrier Safety 
Administration, Room W66-458;
    (iii) FOIA Requester Service Center at Federal Railroad 
Administration, Room W33-437;
    (iv) FOIA Requester Service Center at Federal Transit 
Administration, Room E42-315;
    (v) FOIA Requester Service Center at Maritime Administration, Room 
W24-233;
    (vi) FOIA Requester Service Center at National Highway Traffic 
Safety Administration, Room W41-311;
    (vii) FOIA Requester Service Center at Office of the Secretary of 
Transportation, Room W94-122;
    (viii) FOIA Requester Service Center at Office of Inspector General, 
Room W70-329;
    (ix) FOIA Requester Service Center at Pipeline and Hazardous 
Materials Safety Administration, Room E23-306; and
    (2) FOIA Requester Service Center at Federal Aviation 
Administration, 800 Independence Avenue SW., Room 306, Washington, DC 
20591 (unless a more specific address has been designated by FAA at 
http://www.faa.dot.gov/foia).
    (3) FOIA Requester Service Center at Associate Administrator's 
Office, Saint

[[Page 69]]

Lawrence Seaway Development Corporation, 180 Andrews Street, P.O. Box 
520, Massena, NY 13662-0520.
    (b) If the person making the request does not know where in DOT the 
records are located, the person may submit the request to the FOIA 
Requester Service Center at Office of the Secretary of Transportation, 
1200 New Jersey Avenue SE., Room W94-122, Washington, DC 20590 or by 
facsimile: 202-366-8536. Requesters also may contact the FOIA Requester 
Service Center at the Office of the Secretary of Transportation at 202-
366-4542 with questions about how to submit a FOIA request or to confirm 
the mailing addresses indicated in this part.
    (c) Requests for records under this part, and FOIA inquiries 
generally, may be made by accessing the DOT Home Page on the Internet 
(https://www.transportation.gov) and clicking on the Freedom of 
Information Act link (https://www.transportation.gov/foia).

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.28  How does DOT handle requests that concern more than one Government agency?

    (a) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and one or more other Federal agencies, the 
determination as to release is made by DOT, but only after consultation 
with the other concerned agency.
    (b) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and a State, local, or tribal Government, a 
territory or possession of the United States, or a foreign Government, 
the determination as to release is made by DOT, but only after 
consultation with the other concerned Governmental jurisdiction.
    (c) DOT refers a request for a non-DOT-created record covered by 
this subpart (or the relevant portion thereof) for decision by the 
Federal agency that is best able to determine the record's exemption 
status (usually, this is the agency that originated the record), but 
only if that agency is subject to FOIA. DOT makes such referrals 
expeditiously and notifies the requester in writing that a referral has 
been made. DOT informs the requester that the Federal agency to which 
DOT referred the request will respond to the request, unless DOT is 
precluded from attributing the record in question to that agency.
    (d) DOT components will handle all consultations and referrals they 
receive from other agencies or DOT components according to the date the 
FOIA request initially was received by the first agency or DOT 
component, not any later date.



Sec.  7.29  When and how does DOT consult with submitters of commercial information?

    (a) If DOT receives a request for a record that includes information 
designated by the submitter of the information as confidential 
commercial information, or that DOT has some other reason to believe may 
contain information of that type (see Sec.  7.23(c)(4)), DOT notifies 
the submitter expeditiously and asks the submitter to submit any written 
objections to release (unless paragraphs (c) and (d) of this section 
apply). At the same time, DOT notifies the requester that notice and an 
opportunity to comment are being provided to the submitter. To the 
extent permitted by law, DOT affords the submitter a reasonable period 
of time to provide a detailed statement of any such objections. The 
submitter's statement must specify all grounds for withholding any of 
the information. The burden is on the submitter to identify with 
specificity all information for which exempt treatment is sought and to 
persuade the agency that the information should not be disclosed.
    (b) The responsible DOT component, to the extent permitted by law, 
considers carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose commercial 
information. Whenever DOT decides to disclose such information over the 
objection of a submitter, the office responsible for the decision 
provides the submitter with a written notice of intent to disclose, 
which is sent to the submitter a reasonable number of days prior to the 
specified date upon which disclosure is intended. The written notice to 
the submitter includes:

[[Page 70]]

    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the commercial information to be disclosed; and
    (3) A specific disclosure date.
    (c) The notice requirements of this section do not apply if:
    (1) DOT determines that the information should not be disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (d) The procedures established in this section do not apply in the 
case of:
    (1) Information submitted to the National Highway Traffic Safety 
Administration and addressed in 49 CFR part 512.
    (2) Information contained in a document to be filed or in oral 
testimony that is sought to be withheld pursuant to Rule 12 of the Rules 
of Practice in Aviation Economic Proceedings (14 CFR 302.12).
    (3) Information submitted to the Federal Motor Carrier Safety 
Administration and addressed in 49 CFR 389.9.
    (e) Whenever a requester brings suit seeking to compel disclosure of 
confidential commercial information, the responsible DOT component 
promptly notifies the submitter. The submitter may be joined as a 
necessary party in any suit brought against DOT or a DOT component for 
nondisclosure.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



                          Subpart D_Time Limits



Sec.  7.31  What time limits apply to DOT with respect to initial determinations?

    (a) In general. (1) DOT ordinarily responds to requests according to 
their order of receipt.
    (2) DOT makes an initial determination whether to release a record 
requested pursuant to subpart C of this Part within twenty Federal 
working days after the request is received by the appropriate FOIA 
Requester Service Center designated in Sec.  7.27, except that DOT may 
extend this time limit by up to ten Federal working days, or longer, in 
accordance with Sec.  7.34. In addition, DOT may toll this time limit 
one time to seek additional information needed to clarify the request 
and as often as necessary to clarify fee issues with the requester (see 
Sec.  7.35).
    (3) DOT notifies the requester of DOT's initial determination. If 
DOT decides to grant the request in full or in part, DOT makes the 
record (or the granted part) available as promptly as possible and 
provides the requester with written notification of DOT's determination, 
the reasons for the determination, and the right of the requester to 
seek assistance from the FOIA Public Liaison. If DOT denies the request 
in full or in part, because the record (or the denied part) is subject 
to an exemption, is not within DOT's custody and control, or was not 
located following a reasonable search, DOT notifies the requester of the 
denial in writing and includes in the notice the reason for the 
determination, the right of the requester to appeal the determination, 
the name and title of each individual responsible for the initial 
determination to deny the request, and the requester's right to seek 
dispute resolution services from the FOIA Public Liaison or the Office 
of Government Information Services. The denial letter includes an 
estimate of the volume of records or information withheld, in number of 
pages or other reasonable form of estimation. This estimate does not 
need to be provided if the volume is otherwise indicated through 
deletions on records disclosed in part, or if providing an estimate 
would harm an interest protected by an applicable exemption. DOT marks 
or annotates records disclosed in part to show both the amount and 
location of the information deleted whenever practicable (see Sec.  
7.23(d)).
    (b) Multi-track processing of initial requests. (1) A DOT component 
may use two or more processing tracks by distinguishing between simple 
and more complex requests based on the amount of work and/or time needed 
to process the request, or based on the number of pages involved.

[[Page 71]]

    (2) A DOT 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 within the 
specified limits of the component's faster track(s). In that event, the 
component contacts the requester either by telephone, letter, facsimile, 
or electronic mail, whichever is most efficient in each case.
    (3) Upon receipt of a request that will take longer than ten days to 
process, a DOT component shall assign an individualized tracking number 
to the request and notify the requester of the assigned number. 
Requesters may contact the appropriate DOT component FOIA Requester 
Service Center to determine the status of the request.
    (c) Expedited processing of initial requests. (1) Requests are 
processed out of order and given expedited treatment whenever a 
compelling need is demonstrated and DOT determines that the compelling 
need involves:
    (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; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (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, the request for expedited processing must be received by 
the FOIA office for the component that maintains the records requested, 
as identified in Sec.  7.27.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular urgency 
to inform the public about the Government activity involved in the 
request, beyond the public's right to know about Government activity 
generally.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component decides whether to grant it and 
notifies the requester of the decision. If DOT grants a request for 
expedited treatment, the request is given priority and is processed as 
soon as practicable. If DOT denies a request for expedited processing, 
any appeal of that denial is acted on expeditiously.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.32  What time limits apply to a requester when appealing DOT's initial or final determination?

    (a) Denial of records request. When the responsible DOT official 
determines that a record request will be denied, in whole or in part, 
because the record is subject to an exemption, is not in DOT's custody 
and control, or was not located following a reasonable search, DOT 
provides the requester with the written statement described in Sec.  
7.31(a)(3).
    (b) Denial of fee waiver. When the responsible DOT official denies, 
in whole or in part, a request for a waiver of fees made pursuant to 
Sec.  7.24(b) or Sec.  7.43(c), DOT provides the requester with written 
notification of that determination, the reasons for the determination, 
the right of the requester to appeal the determination within DOT, and 
the requester's right to seek assistance in resolution of disputes from 
the FOIA Public Liaison or Office of Government Information Services.
    (c) Denial of expedited processing. When the responsible DOT 
official denies a request for expedited processing made pursuant to 
Sec.  7.31(c), DOT provides the requester with written notice of that 
determination, the reasons for the determination, the right to appeal 
the determination within DOT, and the requester's right to seek dispute 
resolution services from the FOIA Public Liaison or Office of Government 
Information Services.
    (d) Right to administrative appeal. Any requester to whom a record 
has not been made available within the time limits established by Sec.  
7.31 and any requester who has been provided a written determination 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the responsible DOT official.

[[Page 72]]

    (1) Each appeal must be made in writing to the appropriate DOT 
appeal official and postmarked or, in the case of electronic or 
facsimile transmissions transmitted, within ninety calendar days from 
the date the initial determination is signed and should include the DOT 
file or reference number assigned to the request and all information and 
arguments relied upon by the person making the request. The contact 
information for all DOT component appeal officials is identified in the 
DOT FOIA Reference Guide available at https://www.transportation.gov/
foia. The envelope in which a mailed appeal is sent or the subject line 
of an appeal sent electronically or by facsimile should be prominently 
marked: ``FOIA Appeal.'' The twenty Federal working day limit described 
in Sec.  7.33(a) will not begin to run until the appeal has been 
received by the appropriate office and identified as an appeal under 
FOIA, or would have been so identified with the exercise of due 
diligence, by a DOT employee.
    (2) Whenever the responsible DOT official determines it is 
necessary, the official may require the requester to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. DOT's time limit for 
responding to an appeal may be extended as provided in Sec.  7.34. The 
decision of the responsible DOT official as to the availability of the 
record, the appropriateness of a fee waiver or reduction, or the 
appropriateness of expedited processing, constitutes final agency action 
for the purpose of judicial review.
    (3) The decision of the responsible DOT official to deny a record 
request, to deny a request for a fee waiver or reduction, or to deny a 
request for expedited processing is considered to be a denial by the 
Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
    (4) When the responsible DOT official denies an appeal, the 
requester is informed in writing of the reasons for the denial of the 
request and the names and titles or positions of each person responsible 
for the determination, and that judicial review of the determination is 
available in the United States District Court for the judicial district 
in which the requester resides or has his or her principal place of 
business, the judicial district in which the requested records are 
located, or the District of Columbia.
    (e) Right to judicial review. Any requester who has not received an 
initial determination on his or her request within the time limits 
established by Sec.  7.31 can seek immediate judicial review, which may 
be sought without the need to first submit an administrative appeal. Any 
requester who has received a written determination denying his or her 
administrative appeal or who has not received a written determination of 
his or her administrative appeal within the time limits established by 
Sec.  7.33 can seek judicial review. A determination that a record 
request is denied, that a request for a fee waiver or reduction is 
denied, and/or that a request for expedited processing is denied does 
not constitute final agency action for the purpose of judicial review 
unless it is made by the responsible DOT official. Judicial review may 
be sought in the United States District Court for the judicial district 
in which the requester resides or has his or her principal place of 
business, the judicial district in which the requested records are 
located, or the District of Columbia.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.33  What time limits apply to DOT with respect to administrative appeals (final determinations)?

    (a) In general. (1) DOT ordinarily processes appeals according to 
their order of receipt.
    (2) DOT issues a determination with respect to any appeal made 
pursuant to Sec.  7.32(d) within twenty Federal working days after 
receipt of such appeal, except that in unusual circumstances DOT may 
extend this time limit by up to ten Federal working days in accordance 
with Sec.  7.34(a) or for more than ten Federal working days in 
accordance with Sec.  7.34(b). DOT notifies the requester making the 
appeal immediately, in writing, if the agency takes an extension of 
time. DOT may inform the requester making the appeal, at any time, of 
exceptional circumstances delaying the processing of the appeal (see 
Sec.  7.34(c)).

[[Page 73]]

    (b) Multi-track processing of appeals. (1) A DOT component may use 
two or more processing tracks by distinguishing between simple and more 
complex appeals based on the amount of work and/or time needed to 
process the appeal, or based on the amount of information involved.
    (2) A DOT component using multi-track processing may provide persons 
making appeals in its slower track(s) with an opportunity to limit the 
scope of their appeals in order to qualify for faster processing within 
the specified limits of the component's faster track(s). A component 
doing so will contact the person making the appeal either by telephone, 
letter, facsimile, or electronic mail, whichever is most efficient in 
each case.
    (c) Expedited processing of appeals. (1) An appeal is processed out 
of order and given expedited treatment whenever a compelling need is 
demonstrated and DOT determines that the compelling need involves:
    (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; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the appeal or at a later time. For a prompt determination, a request for 
expedited processing must be received by the component that is 
processing the appeal for 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 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular time 
urgency to inform the public about the Government activity involved in 
the request, beyond the public's right to know about Government activity 
generally. A person granted expedited processing under Sec.  7.31(c) 
need merely certify that the same circumstances apply.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requester of the decision. If a request for expedited 
treatment is granted, the appeal will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
of an appeal is denied, no further administrative recourse is available.



Sec.  7.34  When and how are time limits applicable to DOT extended?

    (a) In unusual circumstances as specified in this section, DOT may 
extend the time limits prescribed in Sec. Sec.  7.31 and 7.33 by written 
notice to the person making the request or appeal, setting forth the 
reasons for the extension and the date on which a determination is 
expected to be issued. Such notice may not specify a date that would 
result in a cumulative extension of more than ten Federal working days 
without providing the requester an opportunity to modify the request as 
noted in this section. As used in this paragraph, ``unusual 
circumstances'' means, but only to the extent reasonably necessary to 
the proper processing of the particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; and/or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with any other agency having a substantial interest 
in the determination of the request or among two or more DOT components 
having substantial interest therein.
    (b) When the extension is for more than ten Federal working days, 
the written notice provides the requester with an opportunity to either 
modify the request (e.g., by narrowing the record types or date ranges) 
so that it may be processed within the extended time limit, or arrange 
an alternative time period with the DOT component for processing the 
request (e.g., by

[[Page 74]]

prioritizing portions of the request). The written notice also will 
notify the requester of the right to seek dispute resolution services 
from the Office of Government Information Services.
    (c) The DOT component may inform the requester, at any time, of 
exceptional circumstances that apply to the processing of the request or 
appeal (e.g., if the component is reducing a backlog of requests or 
appeals in addition to processing current requests, or is experiencing 
an unexpected deluge of requests or appeals), as provided in 5 U.S.C. 
552(a)(6)(C).
    (d) When a DOT 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, DOT may 
aggregate the requests for the purposes of fees and processing 
activities, which may result in an extension of the processing time. 
Multiple requests involving unrelated matters are not aggregated.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]



Sec.  7.35  When and how is the twenty day time limit for rendering an initial determination tolled?

    The twenty Federal working day time period in which to render an 
initial determination will proceed without interruption except as 
provided in the following circumstances:
    (a) DOT may toll the initial twenty Federal working day time period 
one time for the purpose of seeking additional information needed to 
clarify the request. Examples of such instances include but are not 
limited to:
    (1) When clarification is needed with regard to the scope of a 
request; or
    (2) When the description of the record(s) being sought does not 
enable the component handling the request to identify or locate the 
record(s).
    (b) DOT may toll the initial twenty Federal working day time period 
as often as necessary to clarify fee issues with the requester. Examples 
of such instances include but are not limited to:
    (1) When the requester has not sufficiently identified the fee 
category applicable to the request;
    (2) When the requester has not stated a willingness to pay fees as 
high as anticipated by DOT; or
    (3) When a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT.



                             Subpart E_Fees



Sec.  7.41  When and how are processing fees imposed for records that are made available under subpart B or processed under subpart C of this part?

    (a) DOT imposes fees for services that DOT performs for the public 
under subparts B and C of this part. Fees apply to all required and 
special services performed by DOT employees, including employees of non-
appropriated fund activities, and contractors, if utilized.
    (b) DOT may assess a fee for time spent searching for records 
requested under subpart C even if the search fails to locate records or 
the records located are determined to be exempt from disclosure. In 
addition, if records are requested for commercial use, DOT may assess a 
fee for time spent reviewing any responsive records located to determine 
whether they are exempt from disclosure.
    (c) When a request is made under subpart C by a first-party 
requester and DOT processes the request under both FOIA and the Privacy 
Act, DOT determines the fees for records in DOT Privacy Act systems of 
record in accordance with the Privacy Act (as implemented by DOT 
regulations at 49 CFR part 10) rather than the FOIA.
    (d) When DOT aggregates requests made under subpart C (see Sec.  
7.34(d)), DOT apportions fees as set forth in Sec.  7.43(b).
    (e) As a special service, DOT may certify copies of records made 
available under subpart B or released under subpart C, upon request and 
payment of the applicable fee: with the DOT seal (where authorized)--US 
$10; or true copy, without seal--US $5. Certified copies can be 
requested by contacting the applicable FOIA Requester Service

[[Page 75]]

Center (see Sec.  7.27) or the DOT Dockets Office identified in Sec.  
7.12(b)(1).
    (f) DOT makes transcripts of hearings or oral arguments available 
for inspection only. If transcripts are prepared by a nongovernmental 
contractor and the contract permits DOT to handle the reproduction of 
further copies, DOT assesses duplication fees as set forth in Sec.  
7.42(d). If the contract for transcription services reserves the sales 
privilege to the reporting service, any duplicate copies must be 
purchased directly from the reporting service.
    (g) In the interest of making documents of general interest publicly 
available at as low a cost as possible, DOT arranges alternative sources 
whenever possible. In appropriate instances, material that is published 
and offered for sale may be purchased from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402-0001; 
U.S. Department of Commerce's National Technical Information Service 
(NTIS), Springfield, VA 22151; or National Audio-Visual Center, National 
Archives and Records Administration, Capital Heights, MD 20743-3701.



Sec.  7.42  What is DOT's fee schedule for records requested under subpart C of this part?

    (a) DOT calculates the hourly rates for manual searching, computer 
operator/programmer time, and time spent reviewing records, when 
performed by employees, based on the grades and rates in the General 
Schedule Locality Pay Table for the Locality of Washington-Baltimore-
Northern Virginia, DC-MD-VA-WV-PA, or equivalent grades, plus 16% to 
cover fringe benefits, as follows:
    (1) GS-1 through GS-8 (or equivalent)--Hourly rate of GS-5 step 7 
plus 16%;
    (2) GS-9 through GS-12 (or equivalent)--Hourly rate of GS-10 step 7 
plus 16%;
    (3) GS-13 through GS-14 (or equivalent)--Hourly rate of GS-13 step 7 
plus 16%; and
    (4) GS-15 and above (or equivalent)--Hourly rate of GS-15 step 7 
plus 16%.
    (b) DOT determines the standard fee for a manual or electronic 
search to locate records by multiplying the searcher's hourly rate as 
set forth in paragraph (a) of this section by the time spent conducting 
the search.
    (c) DOT's standard fee for review of records is the reviewer's rate 
set forth in paragraph (a) of this section, multiplied by the time the 
reviewer spent determining whether the located records are responsive to 
the request and whether the responsive records or segregable portions 
are exempt from disclosure, as explained in paragraphs (h), (i), and (j) 
of this section.
    (d) DOT determines the standard fee for duplication of records as 
follows:
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means (includes costs of personnel 
and equipment)--US $0.10.
    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) If DOT utilizes a contractor to perform any services described 
in this section, the standard fee is based on the equivalent hourly 
rate(s). DOT does not utilize contractors to discharge responsibilities 
that only DOT may discharge under the FOIA.
    (f) In some cases, depending upon the category of requester and the 
use for which the records are requested, the fees computed in accordance 
with the standard fee schedule in paragraphs (a) through (e) of this 
section are either reduced or not charged, as prescribed by other 
provisions of this subpart.
    (g) For purposes of fees only, there are four categories of FOIA 
requests:
    (1) Requests submitted by a commercial entity and/or for a 
commercial use;
    (2) Requests submitted by an educational or noncommercial scientific 
institution whose purpose is scholarly or scientific research (and not 
for a commercial use);
    (3) Requests submitted by a representative of the news media; and
    (4) All other requests.
    (h) When records are requested by a commercial requester and/or for 
a commercial use, the fees assessed are reasonable standard charges for 
document search, duplication, and review.
    (i) When records are requested by an educational or noncommercial 
scientific institution whose purpose is scholarly or scientific research 
or by a representative of the news media (i.e.,

[[Page 76]]

for a non-commercial use), fees are limited to reasonable standard 
charges for document duplication.
    (j) For any request not described in paragraph (h) or (i) of this 
section, fees are limited to reasonable standard charges for document 
search and duplication.
    (k) Fees under this subpart do not apply to any special study, 
special statistical compilation, table, or other record requested under 
49 U.S.C. 329(c). The fee for the performance of such a service is the 
actual cost of the work involved in compiling the record. All such fees 
received by DOT in payment of the cost of such work are deposited in a 
separate account administered under the direction of the Secretary, and 
may be used for the ordinary expenses incidental to providing the 
information.



Sec.  7.43  When are fees waived or reduced for records requested under subpart C of this part?

    (a) DOT does not charge fees to any requester making a request under 
subpart C of this part for the following services:
    (1) Services for which the total amount of fees that could be 
charged for the particular request (or aggregation of requests) is less 
than US $20, after taking into account all services that must be 
provided free of charge or at a reduced charge.
    (2) The first two hours of search time, unless the records are 
requested for commercial use.
    (3) Duplication of the first 100 pages (standard paper, not larger 
than 8.5 x 14 inches) of records, unless the records are requested for 
commercial use.
    (4) Review time spent determining whether a record is exempt from 
disclosure, unless the record is requested for commercial use. DOT does 
not charge for review time except with respect to an initial review to 
determine the applicability of a particular exemption to a particular 
record or portion of a record. DOT does not charge for review at the 
administrative appeal level. However, when records or portions of 
records withheld under an exemption that is subsequently determined not 
to apply are reviewed again to determine the applicability of other 
exemptions not previously considered, this is considered an initial 
review for purposes of assessing a review charge.
    (b) When DOT aggregates requests as provided in Sec.  7.34(d), DOT 
charges each requester a ratable portion of the fees charged for 
combined services rendered on behalf of all requesters.
    (c) DOT waives or reduces the fees described in Sec.  7.42(i) and 
(j) when the requester makes a fee waiver or reduction request as 
provided in Sec.  7.24(b) and establishes that disclosure of the 
information is in the public interest as provided in 5 U.S.C. 552 and 
this paragraph, and the DOT official having initial denial authority 
determines that disclosure of the information is in the public interest 
and is not primarily in the commercial interest of the requester. The 
requester must establish all of the following factors to DOT's 
satisfaction to show that the request is in the public interest:
    (1) That the subject matter of the requested records concerns the 
operations or activities of the Federal Government;
    (2) That the disclosure is likely to contribute to an understanding 
of Federal Government operations or activities;
    (3) That disclosure of the requested information will contribute to 
the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons (to establish this factor, the requester must show an 
intent and ability to disseminate the requested information to a 
reasonably broad audience of persons interested in the subject);
    (4) That the contribution to public understanding of Federal 
Government operations or activities will be significant; and
    (5) That the requester does not have a commercial interest that 
would be furthered by the requested disclosure or that the magnitude of 
any identified commercial interest to the requester is not sufficiently 
large in comparison with the public interest in disclosure to render the 
disclosure one that is primarily in the commercial interest of the 
requester.
    (d) DOT furnishes documents without charge or at a reduced charge 
when the

[[Page 77]]

official having initial denial authority determines that the request 
concerns records related to the death of an immediate family member who 
was, at the time of death, a DOT employee.
    (e) DOT furnishes documents without charge or at a reduced charge 
when the official having initial denial authority determines that the 
request is by the victim of a crime who seeks the record of the trial at 
which the requester testified.
    (f) Except as provided in paragraphs (f)(1) through (3) of this 
section, DOT does not assess search fees otherwise chargeable under 
Sec.  7.42(h) and (j) or duplication fees otherwise chargeable under 
Sec.  7.42(i) when DOT fails to comply with the time limits under Sec.  
7.31 or Sec.  7.33.
    (1) If DOT has determined that unusual circumstances apply (as 
defined in Sec.  7.34(a)), 5,000 pages or less are necessary to respond 
to the request, and DOT has provided a timely written notice to the 
requester in accordance with Sec.  7.34(a), a failure to comply with the 
time limits under Sec.  7.31 or Sec.  7.33 is excused for an additional 
10 days. If DOT does not comply with the extended time limit, DOT does 
not assess search fees otherwise chargeable under Sec.  7.42(h) and (j) 
or duplication fees otherwise chargeable under Sec.  7.24(i);
    (2) If DOT has determined that unusual circumstances apply (as 
defined under Sec.  7.34(a)) and more than 5,000 pages are necessary to 
respond to the request, DOT may charge search fees under Sec.  7.42(h) 
and (j) or duplication fees under Sec.  7.42(j) if DOT has provided 
timely written notice to the requester in accordance with Sec.  7.34(a) 
and (b), and DOT has discussed with the requester via written mail, 
electronic mail, or telephone (or made not less than three good faith 
attempts to do so) how the requester could effectively limit the scope 
of the request.
    (3) If a court determines that exceptional circumstances exist (as 
that term is defined in 5 U.S.C. 552(a)(6)(C)), failure to comply with 
time limits under Sec.  7.31 or Sec.  7.33 shall be excused for the 
length of time provided by the court order.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]



Sec.  7.44  How can I pay a processing fee for records requested under subpart B or subpart C of this part?

    Fees typically should be paid online, using a credit card, debit 
card, or electronic check. The DOT FOIA page (http://www.dot.gov/foia) 
has direct links to the electronic payment site. Any fees paid with a 
paper check, draft, or money order must be made payable to the U.S. 
Treasury and delivered as directed by the applicable FOIA Requester 
Service Center identified in Sec.  7.27 (if the fees are for records 
made available under subpart C) or the DOT Dockets Office identified in 
Sec.  7.12(b)(1) (if the fees are for records made available under 
subpart B).



Sec.  7.45  When are pre-payments required for records requested under subpart C of this part, and how are they handled?

    (a) When DOT estimates that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requester will likely exceed US $25, DOT notifies the requester of 
the estimated amount of the fees, unless the requester has previously 
indicated a willingness to pay fees as high as those anticipated. In 
cases where DOT notifies the requester that actual or estimated fees may 
amount to more than US $25, the time limit for responding to the request 
is tolled until the requester has agreed to pay the anticipated total 
fee (see Sec.  7.35). The notice also informs the requester how to 
consult with the appropriate DOT officials with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (b) DOT may require payment of fees prior to actual duplication or 
delivery of any releasable records to a requester. However, advance 
payment, i.e., before work is commenced or continued on a request, is 
not required unless:
    (1) Allowable charges that a requester may be required to pay are 
likely to exceed US $250; or
    (2) The requester has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of the U.S. 
Government.
    (c) When paragraph (b)(1) of this section applies, DOT notifies the 
requester

[[Page 78]]

of the estimated cost. If the requester has a history of prompt payment 
of FOIA fees, the requester must furnish satisfactory assurance of full 
payment of the estimated charges. Otherwise, the requester may be 
required to make advance payment of any amount up to the full estimated 
charges.
    (d) When paragraph (b)(2) of this section applies, DOT requires the 
requester to either demonstrate that the fee has been paid or pay the 
full amount owed, including any applicable interest, late handling 
charges, and penalty charges as discussed in Sec.  7.46. DOT also 
requires such a requester to make an advance payment of the full amount 
of the estimated fee before DOT begins processing a new request or 
continues processing a pending request.
    (e) In the event that a DOT component is required to refund a 
prepayment, the processing of the refund may necessitate collection of 
the requester's Taxpayer Identification Number or Social Security Number 
and direct deposit information (bank routing number and bank account 
number) under 31 U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Part 208.



Sec.  7.46  How are late payments handled?

    (a) DOT assesses interest on an unpaid bill starting on the 31st day 
following the day on which the notice of the amount due is first mailed 
to the requester. Interest accrues from the date of the notice of amount 
due at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT of a 
payment for the full amount of the fees owed within 30 calendar days 
after the date of the initial billing stops the accrual of interest, 
even if the payment has not been processed.
    (b) If DOT does not receive payment of the fees charged within 30 
calendar days after the date the initial notice of the amount due is 
first mailed to the requester, DOT assesses an administrative charge to 
cover the cost of processing and handling the delinquent claim. In 
addition, DOT applies a penalty charge with respect to any principal 
amount of a debt that is more than 90 days past due. Where appropriate, 
DOT uses other steps permitted by Federal debt collection statutes, 
including disclosure to consumer reporting agencies and use of 
collection agencies, to encourage payment of amounts overdue.



PART 8_CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/ACCESS--Table of Contents



                            Subpart A_General

Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.

        Subpart B_Classification/Declassification of Information

8.9 Information Security Review Committee.
8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
8.15 Mandatory review for classification.
8.17 Classification challenges.
8.19 [Reserved]
8.21 Burden of proof.
8.23 Classified information transferred to the Department of 
          Transportation.

                     Subpart C_Access to Information

8.25 Personnel Security Review Board.
8.27 Public availability of declassified information.
8.29 Access by historical researchers and former Presidential 
          appointees.
8.31 Industrial security.

    Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936, 
amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 973, E.O. 
10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O. 10548, 19 FR 
4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR 4981, 3 CFR, 
1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR, 1971-1975 Comp., 
p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874, E.O. 
12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266; E.O. 12829, 58 FR 3479, 3 
CFR, 1993 Comp., p. 570, amended by E.O. 12885, 58 FR 65863, 3 CFR, 1993 
Comp., p. 684; E.O. 13526, 75 FR 707, 3 CFR, 2010 Comp., p. 298; E.O. 
12968, 3 CFR, 1995 Comp., p. 391, amended by E.O. 13467, 73 FR 38103, 3 
CFR, 2009 Comp., p. 196.

    Source: 62 FR 23661, May 1, 1997, unless otherwise noted.



                            Subpart A_General



Sec.  8.1  Scope.

    This part sets forth procedures for the classification, 
declassification, and availability of information that must

[[Page 79]]

be protected in the interest of national security, in implementation of 
Executive Order 13526 of December 29, 2010, ``Classified National 
Security Information;'' and for the review of decisions to revoke, or 
not to issue, national security information clearances, or to deny 
access to classified information, under Executive Order 12968 of August 
2, 1995, ``Access to National Security Information,'' as amended by 
Executive Order 13467 of June 30, 2008, ``Reforming Processes Related to 
Suitability for Government Employment, Fitness for Contractor Employees, 
and Eligibility for Access to Classified National Security 
Information.''

[81 FR 45980, July 15, 2016]



Sec.  8.3  Applicability.

    This part applies to all elements of the Department of 
Transportation.



Sec.  8.5  Definitions.

    As used in this part:
    Authorized holder is any individual who has been granted access to 
specific classified information in accordance with Executive Order 13526 
or any successor order.
    Classification means the act or process by which information is 
determined to be classified information.
    Classification levels means the following three levels at which 
information may be classified:
    (a) Top secret. Information that requires the highest degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (b) Secret. Information that requires a substantial degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause serious damage to the national security that the 
original classification authority is able to identify or describe.
    (c) Confidential. Information that requires protection and the 
unauthorized disclosure of which could reasonably be expected to cause 
damage to the national security that the original classification 
authority is able to identify or describe.
    Classified information or ``classified national security 
information'' means information that has been determined under Executive 
Order 13526, or any predecessor or successor order, to require 
protection against unauthorized disclosure, and is marked to indicate 
its classified status when in documentary form.
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450, 12968, 13467, and appropriate DOT 
regulations, for access to classified information.
    Damage to the national security means harm to the national defense 
or foreign relations of the United States from the unauthorized 
disclosure of information, taking into consideration such aspects of the 
information as the sensitivity, value, utility, and provenance of that 
information.
    Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    Downgrading means a determination by a declassification authority 
that information classified and safeguarded at a specific level shall be 
classified and safeguarded at a lower level.
    Information means any knowledge that can be communicated, or 
documentary material, regardless of its physical form or 
characteristics, that is owned by, produced by or for, or is under the 
control of the United States Government. ``Control'' means the authority 
of the agency that originates information, or its successor in function, 
to regulate access to the information.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements of section 3.5 of Executive 
Order 13526.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    Original classification authority means an individual authorized in 
writing, either by the President, the Vice President, or by agency heads 
or other officials designated by the President, to

[[Page 80]]

classify information in the first instance.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]



Sec.  8.7  Spheres of responsibility.

    (a) Pursuant to section 5.4(d) of Executive Order 13526, and to 
section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of the 
Department of Transportation with assigned responsibilities to assure 
effective compliance with and implementation of Executive Order 13526, 
Executive Order 12968, Office of Management and Budget Directives, the 
regulations in this part, and related issuances.
    (b) In the discharge of these responsibilities, the Assistant 
Secretary for Administration will be assisted by the Director of 
Security , who, in addition to other actions directed by this part, will 
evaluate the overall application of and adherence to the security 
policies and requirements prescribed in this part and who will report 
his/her findings and recommendations to the Assistant Secretary for 
Administration, heads of Departmental elements, and, as appropriate, to 
the Secretary.
    (c) Secretarial Officers and heads of Departmental elements will 
assure that the provisions in this part are effectively administered, 
that adequate personnel and funding are provided for this purpose, and 
that corrective actions that may be warranted are taken promptly.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]



        Subpart B_Classification/Declassification of Information



Sec.  8.9  Information Security Review Committee.

    (a) The Department of Transportation Information Security Review 
Committee has the authority to:
    (1) Act on all suggestions and complaints not otherwise resolved 
with respect to the Department's administration of Executive Order 13526 
and implementing directives, including those regarding 
overclassification, failure to declassify, or delay in declassifying;
    (2) Act on appeals of requests for classification reviews, and 
appeals of requests for records under 5 U.S.C. 552 (Freedom of 
Information Act) when the initial, and proposed final, denials are based 
on continued classification of the record; and
    (3) Recommend to the Secretary, when necessary, appropriate 
administrative action to correct abuse or violation of any provision of 
Executive Order 12598 and implementing directives.
    (b) The Information Security Review Committee will be composed of 
the Assistant Secretary for Administration, who will serve as Chair; the 
General Counsel; and the Director of Security. When matters affecting a 
particular Departmental component are at issue, the Associate 
Administrator for Administration for that component (or for the Federal 
Aviation Administration, the Associate Administrator for Security and 
Hazardous Materials Safety) will participate as an ad hoc member, 
together with the Chief Counsel of that component. Any regular member 
may designate a representative with full power to serve in his/her 
place.
    (c) In carrying out its responsibilities to review decisions to 
revoke or not to issue clearances, or to deny access to classified 
information, the Committee will establish whatever procedures it deems 
fit.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.11  Authority to classify information.

    (a) Presidential Order of December 29, 2009, ``Original 
Classification Authority'' confers upon the Secretary of Transportation 
the authority to originally classify information as SECRET or 
CONFIDENTIAL with further authorization to delegate this authority.
    (b) The following delegations of authority originally to classify 
information as ``Secret'' or ``Confidential'', which may not be 
redelegated, are hereby made:
    (1) Office of the Secretary of Transportation. The Deputy Secretary; 
Assistant Secretary for Administration; Director of Intelligence, 
Security and

[[Page 81]]

Emergency Response; Director of Security.
    (2) Federal Aviation Administration. Administrator; Associate 
Administrator for Security and Hazardous Materials Safety.
    (3) Maritime Administration. Administrator.
    (c) Although the delegations of authority set out in paragraph (b) 
of this section are expressed in terms of positions, the authority is 
personal and is invested only in the individual occupying the position. 
The authority may not be exercised ``by direction of'' a designated 
official. The formal appointment or assignment of an individual to one 
of the identified positions or a designation in writing to act in the 
absence of one of these officials, however, conveys the authority to 
originally classify information as SECRET or CONFIDENTIAL.
    (d) Previous delegations and redelegations of authority within the 
Department of Transportation originally to classify information are 
hereby rescinded.

[62 FR 23661, May 1, 1997, as amended at 76 FR 19708, Apr. 8, 2011; 81 
FR 45981, July 15, 2016]



Sec.  8.13  Authority to downgrade or declassify.

    Information originally classified by the Department may be 
specifically downgraded or declassified by either the official 
authorizing the original classification, if that official is still 
serving in the same position, the originator's current successor in 
function, a supervisory official of either, officials delegated 
declassification authority in writing by the Secretary, or by the 
Departmental Information Security Review Committee.



Sec.  8.15  Mandatory review for classification.

    (a) Mandatory declassification review requests will be processed in 
accordance with 32 CFR 2001.33.
    (b) Except as provided in paragraph b of section 3.5 of Executive 
Order 13526, all information classified by the Department of 
Transportation under Executive Order 13526 or predecessor orders shall 
be subject to a review for declassification if:
    (1) The request for review describes the information with sufficient 
specificity to enable its location with a reasonable amount of effort;
    (2) The information has not been reviewed for declassification 
within the prior two years. If the information has been reviewed within 
the prior two years, or the information is the subject of pending 
litigation, the requestor will be informed of this fact, and of the 
Department's decision not to declassify the information and of his/her 
right to appeal the Department's decision not to declassify the 
information to the Interagency Security Classification Appeals Panel 
(ISCAP);
    (3) The document or material containing the information responsive 
to the request is not contained within an operational file exempted from 
search and review, publication, and disclosure under 5 U.S.C. 552 in 
accordance with law; and
    (4) The information is not the subject of pending litigation.
    (c) All information reviewed for declassification because of a 
mandatory review will be declassified if it does not meet the standards 
for classification in Executive Order 13526. The information will then 
be released unless withholding is otherwise authorized and warranted 
under applicable law.
    (d) Mandatory declassification review requests for information that 
has been classified by the Department of Transportation may be addressed 
to the Director of Security, U.S. Department of Transportation, 1200 New 
Jersey Avenue, Washington, DC 20590. The Director will forward the 
request to the appropriate Departmental Original Classification 
Authority for processing.
    (e) Denied requests may be appealed to the DOT Information Security 
Review Committee (DISRC) through the Director of Security within 60 days 
of receipt of the denial. If the DISRC upholds the denial, it will 
inform the requestor of his or her final appeal rights to the ISCAP.

[81 FR 45981, July 15, 2016]



Sec.  8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe

[[Page 82]]

that its classification status is improper are encouraged and expected 
to challenge the classification status of the information before the 
Original Classification Authority (OCA) having jurisdiction over the 
information. A formal challenge must be in writing, but need not be any 
more specific than to question why information is or is not classified, 
or is classified at a certain level.
    (b) Classification challenges to DOT information must be addressed 
to the DOT Original Classification Authority (OCA) who is responsible 
for the information. If unsure of the OCA, address the challenge to the 
DOT Director of Security.
    (c) Classification challenges will be processed according to 32 CFR 
2001.14.

[81 FR 45981, July 15, 2016]



Sec.  8.19  [Reserved]



Sec.  8.21  Burden of proof.

    For the purpose of determinations to be made under Sec. Sec.  8.15 
and 8.17, the burden of proof is on the originating Departmental 
component to show that continued classification is warranted.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.23  Classified information transferred to the Department of Transportation.

    (a) Classified information officially transferred to the Department 
in conjunction with a transfer of functions, and not merely for storage 
purposes, will be considered to have been originated by the Department.
    (b) Classified information in the custody of the Department 
originated by another department or agency that has ceased to exist and 
for whom there is no successor agency will be deemed to have been 
originated by the Department. This information may be declassified or 
downgraded by the Department after consultation with any other agency 
that has an interest in the subject matter of the information. Such 
agency will be allowed 30 calendar days in which to express an 
objection, if it so desires, before action is taken. A difference of 
opinion that cannot be resolved at a lower level will be referred to the 
Departmental Information Security Review Committee, which will consult 
with its counterpart committee for the other agency.
    (c) Classified information transferred to the National Archives and 
Records Administration (NARA) will be declassified or downgraded by the 
Archivist of the United States in accordance with Executive Order 13526, 
directives issued pursuant to Executive Order 13526, Departmental 
classification guides, and any existing procedural agreement between 
NARA and the Department. The Department will take all reasonable steps 
to declassify information contained in records determined to have 
permanent historical value before they are accessioned into the National 
Archives .
    (d) To the extent practicable, the Department will adopt a system of 
records management that will facilitate the public release of documents 
at the time such documents are declassified under the provisions for 
automatic declassification in section 3.3 of Executive Order 13526 and 
its implementing directives. To the maximum extent possible without 
destroying the integrity of the Department's files, all such material 
will be segregated or set aside for public release upon request. The 
Department will cooperate with the Archivist in efforts to establish a 
Government-wide database of information that has been declassified.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



                     Subpart C_Access to Information



Sec.  8.25  Personnel Security Review Board.

    (a) The Department of Transportation Personnel Security Review Board 
will, on behalf of the Secretary of Transportation (except in any case 
in which the Secretary personally makes the decision), make the 
administratively final decision on an appeal arising in any part of the 
Department from:
    (1) A decision not to grant access to classified information;
    (2) A decision to revoke access to classified information; or
    (3) A decision under Sec.  8.29 to deny access to classified 
information.

[[Page 83]]

    (b) The Personnel Security Review Board will be composed of:
    (1) Two persons appointed by the Assistant Secretary for 
Administration: One from the Office of Human Resource Management, and 
one, familiar with personnel security adjudication, from the Office of 
Security, who will serve as Chair;
    (2) One person appointed by the General Counsel, who, in addition to 
serving as a member of the Board, will provide to the Board whatever 
legal services it may require;
    (3) One person appointed by the Administrator of the Federal 
Aviation Administration; and
    (4) One person appointed by the Administrator of the Federal Highway 
Administration.
    (5) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review final decisions 
to revoke or deny access to classified information, the Board will 
establish whatever procedures it deems fit.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.27  Public availability of declassified information.

    (a) It is a fundamental policy of the Department to make information 
available to the public to the maximum extent permitted by law. 
Information that is declassified for any reason loses its status as 
material protected in the interest of national security. Accordingly, 
declassified information will be handled in every respect on the same 
basis as all other unclassified information. Declassified information is 
subject to the Departmental public information policies and procedures, 
with particular reference to the Freedom of Information Act (5 U.S.C. 
552) and implementing Departmental regulations (49 CFR Part 7).
    (b) In furtherance of this policy, all classified material produced 
after June 1, 1972 that is of sufficient historical or other value to 
warrant preservation as permanent records in accordance with appropriate 
records administrative standards, and that becomes declassified, will be 
systematically reviewed prior to the end of each calendar year for the 
purpose of making the material publicly available. To the maximum extent 
possible without destroying the integrity of the Department's files, all 
such material will be segregated or set aside for public release upon 
request.



Sec.  8.29  Access by historical researchers and former Presidential appointees.

    Access to classified information may be granted to historical 
researchers and former Presidents and Vice-Presidents and their 
appointees as outlined in Executive Order 13526 or its successor order. 
The general guidelines for access to classified information are 
contained in Executive Order 12968.

[81 FR 45982, July 15, 2016]



Sec.  8.31  Industrial security.

    (a) Background. The National Industrial Security Program was 
established by Executive Order 12829 of January 6, 1993 for the 
protection of information classified pursuant to Executive Order 12356 
of April 2, 1982, National Security Information, or its predecessor or 
successor orders, and the Atomic Energy Act of 1954, as amended. The 
Secretary of Defense serves as the Executive Agent for inspecting and 
monitoring contractors, licensees, grantees, and certificate holders 
that require or will require access to, or that store or will store, 
classified information, and for determining the eligibility for access 
to classified information of contractors, licensees, certificate 
holders, and grantees, and their respective employees.
    (b) Implementing regulations. The Secretary of Transportation has 
entered into an agreement for the Secretary of Defense to render 
industrial security services for the Department of Transportation. 
Regulations prescribed by the Secretary of Defense to fulfill the 
provisions of Executive Order 12829 have been extended to protect 
release of classified information for which the Secretary of 
Transportation is responsible. Specifically, this regulation is DOD 
5220.22-M, National Industrial Security Program Operating Manual, and is 
effective within the Department of Transportation. Appropriate security

[[Page 84]]

staff, project personnel, and contracting officers must assure that 
actions required by the regulation are taken.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45982, July 15, 2016]



PART 9_TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents



Sec.
9.1 Purpose.
9.2 Applicability.
9.3 Definitions.
9.5 General prohibition of production or disclosure in legal 
          proceedings.
9.7 Testimony by employees before the Department or in other legal 
          proceedings in which the United States is a party.
9.9 Legal proceedings between private litigants: General rules.
9.11 Legal proceedings between private litigants: Demands.
9.13 Legal proceedings between private litigants: Procedures to request 
          records.
9.15 Legal proceedings between private litigants: Procedures to request 
          testimony.
9.17 Legal proceedings between private litigants: Procedures for taking 
          testimony.
9.19 Acceptance of service on behalf of Secretary.

    Authority: 5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C. 
504(f); 23 U.S.C. 409.

    Source: 58 FR 6724, Feb. 2, 1993, unless otherwise noted.



Sec.  9.1  Purpose.

    (a) This part sets forth procedures governing the testimony of an 
employee in legal proceedings in which the United States is a party. It 
also sets forth procedures to be followed when an employee is issued a 
subpoena, order or other demand (collectively referred to in this part 
as a ``demand'') by a court or other competent authority, or is 
requested by a private litigant, to provide testimony or produce records 
concerning information acquired in the course of performing official 
duties or because of the employee's official status. It also prescribes 
the policies and procedures of the Department with respect to the 
acceptance of service of legal process and pleadings in legal 
proceedings involving the Department.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the Department in 
controversial issues not related to its mission;
    (3) Maintain the impartiality of the Department among private 
litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information and the 
deliberative processes of the Department.
    (c) Agency counsel, in his or her discretion, may permit an 
exception from any requirement in this part. The exception may be 
granted only when the deviation will not interfere with matters of 
operational or military necessity, and when agency counsel determines 
that:
    (1) It is necessary to prevent a miscarriage of justice;
    (2) The Department has an interest in the decision that may be 
rendered in the legal proceeding; or
    (3) The exception is in the best interest of the Department or the 
United States.

For Office of Inspector General employees and documents, the Inspector 
General, in conjunction with the General Counsel of the Department, may 
permit an exception from any requirement of this part if the Inspector 
General determines, based on the Inspector General Act of 1978, as 
amended, that application of the requirement would be inappropriate.



Sec.  9.2  Applicability.

    This part applies to the testimony of an employee in legal 
proceedings in which the United States is a party. It also applies in 
legal proceedings between private litigants to requests or demands for 
testimony or records concerning information acquired in the course of an 
employee performing official duties or because of the employee's 
official status. This part does not apply to any legal proceeding in 
which an employee is to testify as to facts or events that are in no way 
related to the employee's official duties or the functions of the 
Department. Nor does it apply to Congressional demands for testimony or 
documents.

[[Page 85]]



Sec.  9.3  Definitions.

    For purposes of this part:
    Department means the Department of Transportation (DOT), including 
the Office of the Secretary (which encompasses the Office of the 
Inspector General) and the following operating administrations while 
they are part of DOT:
    (a) The U.S. Coast Guard.
    (b) The Federal Aviation Administration.
    (c) The Federal Highway Administration.
    (d) The Federal Railroad Administration.
    (e) The Federal Transit Administration.
    (f) The St. Lawrence Seaway Development Corporation.
    (g) The National Highway Traffic Safety Administration.
    (h) The Maritime Administration.
    (i) The Research and Special Programs Administration.
    (j) Any DOT operating administration established after the effective 
date of this part.
    Legal proceeding means any case or controversy pending before any 
federal, state, or local court (including grand jury proceedings), any 
administrative proceeding pending before any federal, state, or local 
agency, or any legislative proceeding pending before any state or local 
agency.
    Legal proceeding between private litigants means any legal 
proceeding in which neither the Department of Transportation nor the 
United States (including any federal agency or officer of the United 
States in his or her official capacity) is a party.
    Employee of the Department or Employee means any current or former 
officer or employee of the Department; any active duty, retired, or 
former officer or enlisted member of the Coast Guard; or any current or 
former contractor (including any corporation or other entity and any 
employee or subcontractor).
    Agency counsel means the General Counsel of the Department or the 
Chief Counsel of any operating administration of the Department 
concerned, any person to whom the General Counsel or Chief Counsel has 
delegated authority, or any person who is authorized to represent the 
Department in a specific legal proceeding.
    Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



Sec.  9.5  General prohibition of production or disclosure in legal proceedings.

    No employee of the Department may provide testimony or produce any 
material contained in the files of the Department, or disclose any 
information relating to, or based upon, material contained in the files 
of the Department, or disclose any information or produce any material 
acquired as part of the performance of that employee's official duties 
or because of that employee's official status unless authorized in 
accordance with this part, or by other applicable law.



Sec.  9.7  Testimony by employees before the Department or in other legal proceedings in which the United States is a party.

    In any legal proceeding before the Department or in which the United 
States (including any federal agency or officer of the United States) is 
a party:
    (a) Agency counsel shall arrange for an employee to testify as a 
witness for the United States whenever the attorney representing the 
United States requests it.
    (b) An employee may testify for the United States both as to facts 
within the employee's personal knowledge and as an expert or opinion 
witness. Except as provided in paragraph (c) of this section, an 
employee may not testify as an expert or opinion witness, with regard to 
any matter arising out of the employee's official duties or the 
functions of the Department, for any party other than the United States 
in any legal proceeding in which the United States is a party. An 
employee who receives a demand to testify on behalf of a party other 
than the United States may testify as to facts within the employee's 
personal knowledge, provided that the testimony be subject to the prior 
approval of agency counsel and to the Federal Rules of Civil Procedure 
and any applicable claims of privilege.

[[Page 86]]

    (c) An employee may testify as an expert or opinion witness on 
behalf of an officer or enlisted member of the Coast Guard in any legal 
proceeding conducted by the Coast Guard.



Sec.  9.9  Legal proceedings between private litigants: General rules.

    In legal proceedings between private litigants:
    (a) The proper method for obtaining testimony or records from an 
employee is to submit a request to agency counsel as provided in 
Sec. Sec.  9.13 and 9.15 of this part, not to serve a demand on the 
employee. Whenever, in a legal proceeding between private litigants, an 
employee is served with a demand, or receives a request, to testify in 
that employee's official capacity or produce records, the employee shall 
immediately notify agency counsel.
    (b) If authorized to testify pursuant to these rules, an employee 
may testify only as to facts within that employee's personal knowledge 
with regard to matters arising out of his or her official duties.
    (1) When the proceeding arises from an accident, an employee may 
testify only as to personally known facts, not reasonably available from 
other sources, observed by the employee or uncovered during the 
employee's investigation of the accident or observed by the employee 
even if he or she did not investigate the accident. The employee shall 
decline to testify regarding facts beyond the scope of his or her 
official duties.
    (2) The employee shall not testify to facts that are contained in a 
report, or any part of a report, unless the employee has obtained 
permission from agency counsel to disclose the information.
    (3) The employee shall not disclose confidential or privileged 
information unless the employee has obtained permission from agency 
counsel to disclose the information.
    (4) The employee shall not testify as to facts when agency counsel 
determines that the testimony would not be in the best interest of the 
Department or the United States if disclosed.
    (c) An employee shall not testify as an expert or opinion witness 
with regard to any matter arising out of the employee's official duties 
or the functions of the Department. An employee who is asked questions 
that call for expert or opinion testimony shall decline to answer on the 
grounds that it is forbidden by this part. Agency counsel shall advise 
the employee on how to proceed if the presiding officer directs the 
employee to provide expert or opinion testimony.
    (d) An employee shall not provide testimony at a trial or hearing. 
An employee's testimony shall be limited to a single deposition, 
affidavit, or set of interrogatories, concerning the circumstances (e.g. 
an accident) from which the proceeding arose. Where multiple legal 
proceedings concerning those circumstances are pending, or can occur, it 
shall be the duty of the private litigant seeking the testimony to 
ascertain, to the extent feasible, the identities of all parties, or 
potential parties, to those proceedings and notify them that a 
deposition has been granted and that they have the opportunity to 
participate. The private litigant shall submit an affidavit or 
certification describing the extent of the search for parties and 
potential parties and listing the names of the parties and potential 
parties notified.
    (e) Where an employee has already provided testimony, any party 
wishing to obtain further testimony from that employee concerning the 
same matter or occurrence, whether in the same or a different private 
legal proceeding, may submit a request to agency counsel to waive the 
restrictions of paragraph (d) of this section. The request shall, in 
addition to meeting the requirements of Sec.  9.15 of this part, state 
why the requester should be permitted to gather additional information 
despite not having previously requested the information when it had an 
opportunity to do so, and why the additional testimony is now required 
and the prior testimony or previously supplied documents are 
insufficient.



Sec.  9.11  Legal proceedings between private litigants: Demands.

    (a) If an employee receives a demand that has not been validly 
issued or served, agency counsel may instruct the employee not to comply 
with the demand.

[[Page 87]]

    (b) If an employee receives a demand (validly issued and served) to 
testify or produce records, agency counsel, in his or her discretion, 
may grant the employee permission to testify or produce records only if 
the purposes of this part are met or agency counsel determines that an 
exception is appropriate.
    (c) If a demand is issued to an employee, agency counsel shall 
contact the requester of the demand, inform that person of the 
requirements of this part, and may, in agency counsel's discretion, ask 
that the demand be withdrawn.
    (d) If the requester of the demand refuses to have it withdrawn or 
fails to comply with this part, the Department may seek to quash the 
demand.
    (e) If the court or other competent authority declines to grant the 
Department's motion to quash, agency counsel shall instruct the employee 
whether to testify or produce documents pursuant to the demand. Agency 
counsel may permit the testimony under Sec.  9.1(c) of this part. If 
response to a demand is required before the court or other competent 
authority rules on the motion to quash and the court fails to stay the 
demand, the employee must appear at the stated time and place, produce a 
copy of this part, and respectfully refuse to provide any testimony or 
produce any documents. Agency counsel shall take steps to arrange for 
legal representation for the employee. Agency counsel shall advise the 
employee how to respond, including not to testify, if the court or other 
competent authority rules that the demand must be complied with 
irrespective of these regulations.



Sec.  9.13  Legal proceedings between private litigants: Procedures to request records.

    (a) In a legal proceeding between private litigants, a party who 
wishes to obtain records from the Department shall submit to agency 
counsel a request for the records. The request will ordinarily be 
handled in accordance with the Department's procedures concerning 
requests for records found at 49 CFR part 7. If the party does not 
follow the procedures specified in that part, the request must be 
accompanied by a statement setting forth the relevance of the records to 
the proceeding. The request should be resolved before any request for 
testimony under Sec.  9.15 is submitted. Where a request for testimony 
includes a request for additional records, it shall indicate precisely 
how this new request differs in scope from any previous request in order 
to avoid agency duplication of effort. Agency counsel shall notify the 
requester of the approval or denial of the request.
    (b) [Reserved]



Sec.  9.15  Legal proceedings between private litigants: Procedures to request testimony.

    (a) Any party seeking the testimony of an employee in a legal 
proceeding between private litigants, concerning facts within the 
employee's personal knowledge with regard to matters arising out of the 
employee's official duties, shall, rather than serving a demand for the 
testimony, request the testimony at least 30 days before it is intended 
to be taken or received. The request must be submitted to agency counsel 
and must include:
    (1) The title of the case, docket number, and the court, or 
otherwise clearly identify the legal proceeding involved;
    (2) A statement setting forth the basic facts in the proceeding, 
such as the type, date, and location of an accident;
    (3) A summary of the unresolved issues applicable to the testimony 
sought;
    (4) A summary of the testimony sought and its relevant to the 
proceeding;
    (5) A certification with support, that the information desired is 
not reasonably available from other sources, including Departmental 
documents;
    (6) Pursuant to Sec.  9.9(d) of this part, an affidavit or 
certification describing the extent of a search of parties and potential 
parties and listing the names of the parties and potential parties 
notified; and
    (7) A declaration that the party will not seek expert or opinion 
testimony from the witness or seek the testimony of the witness at a 
hearing or trial in the proceeding.

The request shall specify which form of testimony (deposition, 
affidavit, declaration, or answers to interrogatories)

[[Page 88]]

is desired and the date by which it is desired; however, only one form, 
the one least burdensome to the Department that will provide the needed 
information, will be permitted for each witness.
    (b) The party seeking the testimony shall include with its request 
for testimony a copy of any prior request(s) made by the same requester 
to the Department or other agency of the United States for records 
pertaining to the matter being litigated and of the response (not 
including the records themselves) to the request(s). The party seeking 
the testimony shall also comply with any agency counsel request that 
copies of the records previously disclosed by the Department, or a list 
of those records, be furnished.
    (c) In accordance with the requirement of this section and the 
general provisions of this part, agency counsel shall notify the 
requester of the approval or denial of the request. Agency counsel may 
attach special conditions to its approval.



Sec.  9.17  Legal proceedings between private litigants: Procedures for taking testimony.

    (a) Testimony of an employee of the Department may be taken only at 
the office to which the employee is assigned, or any other place 
designated by agency counsel. Additional conditions may be specified 
under Sec.  9.15(c) of this part. The time shall be reasonably fixed to 
avoid substantial interference with the performance of the employee's or 
agency counsel's official duties.
    (b) Upon completion of the testimony of an employee of the 
Department, a copy of the transcript of the testimony shall be 
furnished, at the expense of the party requesting the testimony, to 
agency counsel for the Department's files.



Sec.  9.19  Acceptance of service on behalf of Secretary.

    In any legal proceeding, at the option of the server, process or 
pleadings may be served on agency counsel, with the same effect as if 
served upon the Secretary or the head of the operating administration 
concerned, as the case may be. The official accepting service under this 
section shall acknowledge the service and take appropriate action. This 
section does not in any way abrogate or modify the requirements of Rule 
4(d)(4) and 4(d)(5) of the Federal Rules of Civil Procedure regarding 
service of summons and complaint.



PART 10_MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS--Table of Contents



                   Subpart A_Applicability and Policy

Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.

                            Subpart B_General

10.11 Administration of part.
10.13 Privacy Officer.
10.15 Protection of records.

                    Subpart C_Maintenance of Records

10.21 General.
10.23 Accounting of disclosures.
10.25 Mailing lists.
10.27 Government contractors.
10.29 Social Security numbers.

                    Subpart D_Availability of Records

10.31 Requests for records.
10.33 Acknowledgment and access.
10.35 Conditions of disclosure.
10.37 Identification of individual making request.
10.39 Location of records.

                     Subpart E_Correction of Records

10.41 Requests for correction of records.
10.43 Time limits.
10.45 Statement of disagreement.

Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records

10.51 General.

                          Subpart G_Exemptions

10.61 General exemptions.
10.63 Specific exemptions.

                             Subpart H_Fees

10.71 General.
10.73 Payment of fees.
10.75 Fee schedule.
10.77 Services performed without charge.

[[Page 89]]

                      Subpart I_Criminal Penalties

10.81 Improper disclosure.
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records.

Appendix to Part 10--Exemptions

    Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

    Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec.  10.1  Applicability.

    This part implements section 552a of title 5, United States Code, as 
well as other provisions of the Privacy Act of 1974, and prescribes 
rules governing the availability of those records of the Department of 
Transportation which relate to citizens of the United States and aliens 
lawfully admitted for permanent residence.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]



Sec.  10.3  Policy.

    It is the policy of the Department of Transportation to comply with 
the letter and the spirit of the Privacy Act (the Act). Therefore, 
personal data contained in each system of records is afforded adequate 
protection against unauthorized access, is as accurate as is feasible, 
and is limited to that necessary to accomplish the stated use or uses of 
the system. Further, no system of records is exempted from the 
requirements of the Act unless it is determined that to do so is in the 
best interest of the government with due concern for individual rights.



Sec.  10.5  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Administrator means the head of an operating administration and 
includes the Under Secretary for Security and the Commandant of the 
Coast Guard.
    Department means the Department of Transportation, including the 
Office of the Secretary, the Office of Inspector General, and the 
following operating administrations: This definition specifically 
excludes the Surface Transportation Board, which has its own Privacy Act 
regulations (49 CFR Part 1007), except to the extent that any system of 
records notice provides otherwise.
    (1) Federal Aviation Administration.
    (2) Federal Highway Administration.
    (3) Federal Motor Carrier Safety Administration.
    (4) Federal Railroad Administration.
    (5) Federal Transit Administration.
    (6) National Highway Traffic Safety Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Pipeline and Hazardous Materials Safety Administration.
    (9) Research and Innovative Technology Administration.
    (10) Maritime Administration.
    General Counsel means the General Counsel of the Department.
    Includes means ``includes but is not limited to;''
    Individual means a citizen of the United States or an alien lawfully 
admitted;
    Maintain includes maintain, collect, use, or disseminate;
    May is used in a permissive sense to state authority or permission 
to do the act prescribed;
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Department including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the name of, or an 
identifying number, symbol, or other identifying particular assigned to, 
the individual, such as a finger or voice print or a photograph;
    Secretary means the Secretary of Transportation or any person to 
whom has been delegated authority in the matter concerned;
    System of records means a group of any records under the control of 
the Department from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual;
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and not in whole or 
in part in making any determination about an

[[Page 90]]

identifiable individual, except as provided by section 8 of title 13, 
United States Code; and
    Routine use means, with respect to the disclosure of a record, the 
use of such record for a purpose which is compatible with the purpose 
for which it was collected.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65 
FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002; 73 FR 33329, June 
12, 2008]



                            Subpart B_General



Sec.  10.11  Administration of part.

    Authority to administer this part in connection with the records of 
the Office of the Secretary is delegated to the Chief Information 
Officer. Authority to administer this part in connection with records in 
each operating administration is delegated to the Administrator 
concerned. An Administrator may redelegate to officers of that 
administration the authority to administer this part in connection with 
defined systems of records. An Administrator, however, may redelegate 
his or her duties under subparts F and G of this part only to his or her 
deputy and to not more than one other officer who reports directly to 
the Administrator and who is located at the headquarters of that 
administration or at the same location as the majority of that 
administration's systems of records.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



Sec.  10.13  Privacy Officer.

    (a) To assist with implementation, evaluation, and administration 
issues, the Chief Information Officer appoints a principal coordinating 
official with the title Privacy Officer, and one Privacy Act Coordinator 
from his/her staff.
    (b) Inquiries concerning Privacy Act matters, or requests for 
assistance, may be addressed to the Privacy Act Officer (S-80), 
Department of Transportation, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.
    (c) Administrators may designate Privacy Officers or Coordinators to 
act as central coordinators within their administrations to assist them 
in administering the Act.

[73 FR 33329, June 12, 2008]



Sec.  10.15  Protection of records.

    (a) No person may, without permission, remove any record made 
available for inspection or copying under this part from the place where 
it is made available. In addition, no person may steal, alter, mutilate, 
obliterate, or destroy, in whole or in part, such a record.
    (b) Section 641 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever * * * steals, purloins, or knowingly converts to his use or 
the use of another, or without authority, sells, conveys or disposes of 
any record * * * or thing of value of the United States or of any 
department or agency thereof * * * shall be fined not more than $10,000 
or imprisoned not more than 10 years or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than one year or both * * *.

    (c) Section 2071 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever willfully and unlawfully conceals, removes, mutilates, 
obliterates, or destroys, or attempts to do so, or with intent to do so 
takes and carries away any record, proceeding, map, book, paper, 
document, or other thing, filed or deposited * * * in any public office, 
or with any * * * public officer of the United States, shall be fined 
not more than $2,000 or imprisoned not more than 3 years, or both.



                    Subpart C_Maintenance of Records



Sec.  10.21  General.

    Except to the extent that a system of records is exempt in 
accordance with subpart G of this part, the Department, with respect to 
each system of records:
    (a) Maintains in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
Department required to be accomplished by statute or by executive order 
of the President;
    (b) Collects information to the greatest extent practicable directly 
from

[[Page 91]]

the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, or privileges 
under Federal programs;
    (c) Informs each individual whom it asks to supply information, on 
the form which it uses to collect the information or on a separate form 
that can be retained by the individual of:
    (1) The authority (whether granted by statute, or by executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses, as published pursuant to paragraph (d)(4) of 
this section, which may be made of the information; and
    (4) The effects, if any, on the individual of not providing all or 
any part of the requested information;
    (d) Publishes in the Federal Register at least annually a notice of 
the existence and character of the system of records, including:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use;
    (5) The policies and practices regarding storage, retrievability, 
access controls, retention, and disposal of the records;
    (6) The title and business address of the official responsible for 
the system of records;
    (7) The procedures whereby an individual can be notified upon 
request if the system of records contains a record pertaining to that 
individual;
    (8) The procedures whereby an individual can be notified upon 
request how to gain access to any record pertaining to that individual 
contained in the system of records, and how to contest its content; and
    (9) The categories of sources of records in the system;
    (e) Maintains all records which are used in making any determination 
about any individual with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual in the determination;
    (f) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to Sec.  10.35(a)(2), makes reasonable efforts to assure that such 
records are accurate, complete, timely, and relevant for the 
Department's purposes;
    (g) Maintains no record describing how any individual exercises 
rights guaranteed by the First Amendment unless:
    (1) Expressly authorized by the General Counsel; and
    (2) Expressly authorized by statute or by the individual about whom 
the record is maintained or unless pertinent to and within the scope of 
an authorized law enforcement activity;
    (h) Makes reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record.



Sec.  10.23  Accounting of disclosures.

    Each operating administration, the Office of Inspector General, and 
the Office of the Secretary, with respect to each system of records 
under its control:
    (a) Except for disclosures made under Sec.  10.35(a) (1) or (2) of 
this part, keep an accurate accounting of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency made under Sec.  10.33; and
    (2) The name and address of the person or agency to whom the 
disclosure is made;
    (b) Retains the accounting made under paragraph (a) of this section 
for at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made;

[[Page 92]]

    (c) Except for disclosures made under Sec.  10.33(a)(7) of this 
part, makes the accounting made under paragraph (a)(1) of this section 
available to the individual named in the record at his request; and
    (d) Informs any person or other agency about any correction or 
notation of dispute made by the agency in accordance with Sec.  10.45 of 
any record that has been disclosed to the person or agency if an 
accounting of the disclosure was made.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.25  Mailing lists.

    An individual's name and address is not sold or rented unless such 
action is specifically authorized by law. This provision shall not be 
construed to require the withholding of names and addresses otherwise 
permitted to be made public.



Sec.  10.27  Government contractors.

    When the Department provides by a contract for the operation by or 
on behalf of the Department of a system of records to accomplish a 
function of the Department, the requirements of this part are applied to 
such system. For purposes of subpart I, Criminal Penalties, any such 
contractor and any employee of the contractor are considered, in 
accordance with section 3(m) of the Privacy Act, to be employees of the 
Department.



Sec.  10.29  Social Security numbers.

    (a) No individual is denied any right, benefit, or privilege 
provided by law because of such individual's refusal to disclose his 
Social Security account number.
    (b) The provisions of paragraph (a) of this section do not apply to:
    (1) Any disclosure which is required by Federal statute; or
    (2) The disclosure of a Social Security number when such disclosure 
was required under statute or regulation adopted prior to January 1, 
1975, to verify the identity of an individual.
    (c) When an individual is requested to disclose his or her Social 
Security account number, that individual is informed whether that 
disclosure is mandatory or voluntary, by what statutory or other 
authority such number is solicited, what uses are made of it, and what 
detriments, including delay in the location of records, are incurred if 
the number is not provided.



                    Subpart D_Availability of Records



Sec.  10.31  Requests for records.

    (a) Ordinarily, each person desiring to determine whether a record 
pertaining to him/her is contained in a system of records covered by 
this part or desiring access to a record covered by this part, or to 
obtain a copy of such a record, shall make a request in writing 
addressed to the system manager. The ``Privacy Act Issuances'' published 
by the Office of the Federal Register, National Archives and Records 
Administration, describes the systems of records maintained by all 
Federal agencies, including the Department and its components. In 
exceptional cases oral requests are accepted. A description of DOT 
Privacy Act systems notices is available through the Internet free of 
charge at http://www.access.gpo.gov/su--docs/aces/
PrivacyAct.shtml?desc015.html. See Sec.  10.13(b) regarding inquiries 
concerning Privacy Act matters or requests for assistance.
    (b) Each request shall specify the name of the requesting individual 
and the system of records in which the subject record is located or 
thought to be located. If assistance is required to determine the system 
of records identification number assigned in the systems notices, such 
assistance may be obtained from the appropriate Privacy Act officer or 
his assistant. Refer to Sec.  10.13 for procedures for requesting 
assistance.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.33  Acknowledgment and access.

    (a) Requests by an individual to determine whether he or she is the 
subject of a record in a system of records, or requesting access to a 
record in a system of records, should be acknowledged within 10 working 
days, where the request is by mail. For requests in person, an immediate 
response is given, either granting access or informing

[[Page 93]]

such individual when notification or access may be expected.
    (b) If the response granting access or copies of the record is made 
within 10 working days, separate acknowledgment is not required.
    (c) Although requests for access to a record are normally in 
writing, e.g., by filing a written form or letter, it is the option of 
the individual to mail or present the request form in person.



Sec.  10.35  Conditions of disclosure.

    (a) No record that is contained within a system of records of the 
Department is disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains, 
unless disclosure of the record would be:
    (1) To those officers and employees of the Department who have a 
need for the record in the performance of their duties;
    (2) Required under part 7 of this title which implements the Freedom 
of Information Act;
    (3) For a routine use as defined in Sec.  10.5 and described 
pursuant to Sec.  10.21(d)(4);
    (4) 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, United States Code;
    (5) To a recipient who has provided the Department 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;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (7) 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;
    (8) 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;
    (9) To either House of the Congress, or to the extent of matters 
within its jurisdiction, any committee or subcommittee thereof, any 
joint committee of the Congress or subcommittee of any such joint 
committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (b) Any individual requesting access to his or her record or to any 
information pertaining to that individual which is contained within a 
system of records within the Department has access to that record or 
information unless the system of records within which the record or 
information is contained is exempted from disclosure in accordance with 
subpart G, provided, however, that nothing in this part is deemed to 
require that an individual be given access to any information compiled 
in reasonable anticipation of a civil action or proceeding. No exemption 
contained in subpart G of part 7 of the regulations of the Office of the 
Secretary is relied upon to withhold from an individual any record which 
is otherwise accessible to such individual under the provisions of this 
part. Any individual who is given access to a record or information 
pertaining to him is permitted to have a person of his or her own 
choosing accompany him and to have a copy made of all or any portion of 
the record or information in a form comprehensible to the individual. 
When deemed appropriate, the individual may be required to furnish a 
written statement authorizing discussion of his record in the 
accompanying person's presence.

[[Page 94]]

    (c) Medical records. Where requests are for access to medical 
records, including psychological records, the decision to release 
directly to the individual, or to withhold direct release, shall be made 
by a medical practitioner. Where the medical practitioner has ruled that 
direct release will do harm to the individual who is requesting access, 
normal release through the individual's chosen medical practitioner will 
be recommended. Final review and decision on appeals of disapprovals of 
direct release will rest with the General Counsel.
    (d) Any person requesting access to records or to any information 
pertaining to other individuals is not granted such access unless that 
person can show that he or she has obtained permission for such access 
from the individual to whom the record pertains, unless the request 
comes within one of the exceptions of paragraph (a) of this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.37  Identification of individual making request.

    No record or information contained in a system of records is 
disclosed to an individual nor is any correction of a record in 
accordance with subpart E made at the request of an individual unless 
that individual demonstrates that he or she is who he or she claims to 
be. Normally, identity can be proven for individuals who appear in 
person by the presentation of an identifying document issued by a 
recognized organization (e.g., a driver's license or a credit card) and 
which contains a means of verification such as a photograph or a 
signature. For requests by mail, the unique identifier used in the 
system should be included if known. Responses to mail requests are 
normally sent only to the name and address listed in the system of 
records. In the case of particularly sensitive records, additional 
identification requirements may be imposed. In such cases, these 
additional requirements are listed in the public notice for the system.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.39  Location of records.

    Each record made available under this subpart is available for 
inspection and copying during regular working hours at the place where 
it is located, or, upon reasonable notice, at the document inspection 
facilities of the Office of the Secretary or each administration. 
Original records may be copied but may not be released from custody. 
Upon payment of the appropriate fee, copies are mailed to the requester.

[62 FR 23667, May 1, 1997]



                     Subpart E_Correction of Records



Sec.  10.41  Requests for correction of records.

    Any person who desires to have a record pertaining to that person 
corrected shall submit a written request detailing the correction and 
the reasons the record should be so corrected. Requests for correction 
of records shall be submitted to the System Manager.

[62 FR 23667, May 1, 1997]



Sec.  10.43  Time limits.

    Within ten days (excluding Saturday, Sunday, and legal holidays) of 
the receipt in accordance with Sec.  10.41 of a request by an individual 
to amend a record pertaining to him, the receipt of the request is 
acknowledged in writing. If a determination is made to correct the 
record as requested, the correction is promptly made. If a determination 
is made not to correct a record the individual is informed promptly of 
the right to appeal in accordance with subpart F. If an appeal of a 
refusal to correct a record is in accordance with subpart F, a 
determination whether to correct the record is made within thirty days 
(excluding Saturday, Sunday, and legal holidays) of the receipt of the 
appeal unless, for good cause shown the Administrator concerned, or in 
the case of the Office of the Secretary, the General Counsel, extends 
such period. Where an extension is taken, the party taking the appeal is 
promptly notified of such fact.

[[Page 95]]



Sec.  10.45  Statement of disagreement.

    If a determination is made not to amend a record, the requester is 
informed of the right to file a concise statement setting forth the 
reasons for disagreement with the refusal to amend. In any disclosure 
containing information about which an individual has filed such a 
statement of disagreement, the portions of the record which are disputed 
are noted clearly and copies of the statement of disagreement provided. 
If the Administrator concerned or his or her delegee, or in the case of 
the Office of the Secretary, the General Counsel or his or her delegee, 
deems it appropriate, copies of a concise statement of the reasons for 
not making the amendments requested may be provided along with the 
statement of disagreement.



Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records



Sec.  10.51  General.

    (a) Each officer or employee of the Department who, upon a request 
by a member of the public for a record under this part, makes a 
determination that access is not to be granted or who determines not to 
amend a record in a requested manner, gives a written statement of the 
reasons for that determination to the person making the request and 
indicates the name and title or position of each person responsible for 
the denial of such request and the procedure for appeal within the 
Department.
    (b) Any person:
    (1) Who has been given a determination pursuant to paragraph (a) of 
this section, that access will not be granted; or
    (2) Who has been informed that an amendment to a requested record 
will not be made; may apply to the Administrator concerned, or in the 
case of the Office of the Secretary, to the General Counsel for review 
of that decision. A determination that access will not be granted or a 
record amended is not administratively final for the purposes of 
judicial review unless it was made by the Administrator concerned or his 
or her delegee, or the General Counsel or his or her delegee, as the 
case may be. Upon a determination that an appeal will be denied, the 
requester is informed in writing of the reasons for the determination, 
and the names and titles or positions of each person responsible for the 
determination, and that the determination may be appealed to the 
District Court of the United States in the district in which the 
complainant resides, or has his or her principal place of business, or 
in which the records are located, or in the District of Columbia.
    (c) Each application for review must be made in writing and must 
include all information and arguments relied upon by the person making 
the request, and be submitted within 30 days of the date of the initial 
denial; exceptions to this time period are permitted for good reason.
    (d) Upon a determination that a request for the correction of a 
record will be denied, the requester is informed that he may file a 
concise statement in accordance with Sec.  10.45.
    (e) Each application for review must indicate that it is an appeal 
from a denial of a request made under the Privacy Act. The envelope in 
which the application is sent should be marked prominently with the 
words ``Privacy Act.'' If these requirements are not met, the time 
limits described in Sec.  10.43 do not begin to run until the 
application has been identified by an employee of the Department as an 
application under the Privacy Act and has been received by the 
appropriate office.
    (f) The Administrator concerned, or the General Counsel, as the case 
may be, may require the person making the request to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. The decision of the 
Administrator concerned, or the General Counsel, as the case may be, as 
to the availability of the record or whether to amend the record is 
administratively final.
    (g) The decision by the Administrator concerned, or the General 
Counsel, as the case may be, not to disclose a record under this part is 
considered a

[[Page 96]]

determination for the purposes of section 552a(g) of title 5, United 
States Code, ``Civil Remedies.''
    (h) Any final decision by an Administrator or his/her delegate not 
to grant access to or amend a record under this part is subject to 
concurrence by the General Counsel or his or her delegate.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



                          Subpart G_Exemptions



Sec.  10.61  General exemptions.

    (a) The Assistant Secretary for Administration, with regard to the 
Investigations Division; and the Federal Aviation Administrator, with 
regard to the FAA's Investigative Record System (DOT/FAA 815) may exempt 
from any part of the Act and this part except subsections (b), (c)(1) 
and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and 
(i) of the Act, and implementing Sec. Sec.  10.35, 10.23(a) and (b), 
10.21(d)(1) through (6), 10.81, 10.83, and 10.85 of this chapter, any 
systems of records, or portions thereof, which they maintain which 
consist wholly of;
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (b) The requirements (including general notice) of sections 
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code, 
will be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the system; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to concurrence by the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of part 5 of this title, to institute a rulemaking proceeding 
for the amendment or repeal of any exemptions established under this 
section.

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 73 
FR 33329, June 12, 2008]



Sec.  10.63  Specific exemptions.

    The Secretary or his or her delegee, in the case of the Office of 
the Secretary; or the Administrator or his or delegee, in the case of an 
operating administration; or the Inspector General or his or her 
delegee, in the case of the Office of Inspector General, may exempt any 
system of records that is maintained by the Office of the Secretary, an 
operating administration, or the Office of Inspector General, as the 
case may be, from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and 
(I), and (f) of the Act and implementing Sec. Sec.  10.23(c); 10.35(b); 
10.41; 10.43; 10.45; 10.21(a) and 10.21(d)(6), (7), and (8) of this 
chapter, under the following conditions:
    (a) The system of records must consist of:
    (1) Records subject to the provisions of section 552(b)(1) of title 
5, United States Code;
    (2) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of Sec.  10.61(a)(2): Provided, 
however, That if any individual is denied any right, privilege, or 
benefit to which that individual would otherwise be entitled by Federal 
law, or for which that individual would otherwise be eligible, as a 
result of the maintenance of such material, such material is provided to 
such individual, except to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to September 27, 1975, the 
effective date of the Privacy Act of 1974, under an implied promise that 
the identity of the source would be held in confidence;

[[Page 97]]

    (3) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to section 3056 of title 18, United States Code;
    (4) Records required by statute to be maintained and used solely as 
statistical records;
    (5) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to September 27, 
1975, the effective date of the Privacy Act of 1974, under an implied 
promise that the identity of the source would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence.
    (b) The requirements (including general notice) of sections 553 (b) 
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will 
be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the systems; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to the concurrence of the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of 49 CFR part 5, to institute a rulemaking for the amendment 
or repeal of any exemptions established under this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



                             Subpart H_Fees



Sec.  10.71  General.

    This subpart prescribes fees for services performed for the public 
under this part by the Department.



Sec.  10.73  Payment of fees.

    The fees prescribed in this subpart may be paid by check, draft, or 
postal money order payable to the Treasury of the United States.



Sec.  10.75  Fee schedule.

(a) Copies of documents by photocopy or similar method:
  Each page not larger than 11 x 17 inches:
    First page.................................................     $.25
    Each page..................................................      .05
(b) Copies of documents by typewriter: Each page...............     2.00
(c) Certified copies of documents:
  (1) With Department of Transportation seal...................     3.00
  (2) True copy, without seal..................................     1.00
(d) Photographs:
  (1) Black and white print (from negative)....................     1.25
  (2) Black and white print (from print).......................     3.15
  (3) Color print (from negative)..............................     3.50
  (4) Color print (from print).................................     6.25
(e) Duplicate data tapes--each reel of tape or fraction thereof    36.00
 


The applicant must furnish the necessary number of blank magnetic tapes. 
The tapes must be compatible for use in the supplier's computer system, 
\1/2\ inch wide and 2,400 feet long, and must be capable of recording 
data at a density of 556 or 800 characters per inch. Unless otherwise 
designated, the tapes will be recorded at 556 CPI density. The 
Department of Transportation is not responsible for damaged tape. 
However, if the applicant furnishes a replacement for a damaged tape, 
the duplication process is completed at no additional charge.

(f) Microreproduction fees are as follows:
  (1) Microfilm copies, each 100 foot roll or less.............    $3.75
  (2) Microfiche copies, each standard size sheet (4      .15
   x 6 containing up to 65 frames)..................
  (3) Apertune card to hard copy, each copy....................      .50
  (4) 16mm microfilm to hard copy:
    First......................................................      .25
    Additional.................................................      .07

[[Page 98]]

 
(g) Computerline printer output, each 1,000 lines or fraction       1.00
 thereof.......................................................
 



Sec.  10.77  Services performed without charge.

    (a) No fee is charged for time spent in searching for records or 
reviewing or preparing correspondence related to records subject to this 
part.
    (b) No fee is charged for documents furnished in response to:
    (1) A request from an employee or former employee of the Department 
for copies of personnel records of the employee;
    (2) A request from a Member of Congress for official use;
    (3) A request from a State, territory, U.S. possession, county or 
municipal government, or an agency thereof;
    (4) A request from a court that will serve as a substitute for the 
personal court appearance of an officer or employee of the Department;
    (5) A request from a foreign government or an agency thereof, or an 
international organization.
    (c) Documents are furnished without charge or at a reduced charge, 
if the Chief Information Officer or the Administrator concerned, as the 
case may be, determines that waiver or reduction of the fee is in the 
public interest, because furnishing the information can be considered as 
primarily benefiting the general public.
    (d) When records are maintained in computer-readable form rather 
than human-readable form, one printed copy is made available which has 
been translated to human-readable form without a charge for translation 
but in accordance with Sec.  10.75(g), regarding computer line-printed 
charges.

[45 FR 8993, Feb. 11, 1980, as amended at 73 FR 33329, June 12, 2008; 75 
FR 5244, Feb. 2, 2010]



                      Subpart I_Criminal Penalties



Sec.  10.81  Improper disclosure.

    Any officer or employee of the Department who by virtue of his or 
her employment or official position, has possession of, or access to, 
agency records which contain individually identifiable information the 
disclosure of which is prohibited by this part and who knowing that 
disclosure of the specific material is so prohibited, willfully 
discloses the material in any manner to any person or agency not 
entitled to receive it, is guilty of a misdemeanor and fined not more 
than $5,000 in accordance with 5 U.S.C. 552a(i)(1).



Sec.  10.83  Improper maintenance of records.

    Any officer or employee of the Department who willfully maintains a 
system of records without meeting the notice requirements of Sec.  
10.21(d) of this part is guilty of a misdemeanor and fined not more than 
$5,000 in accordance with 5 U.S.C. 552a(i)(2).



Sec.  10.85  Wrongfully obtaining records.

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Department under false 
pretenses is guilty of a misdemeanor and fined not more than $5,000 in 
accordance with 5 U.S.C. 552a(i)(3).



                  Sec. Appendix to Part 10--Exemptions

                       Part I. General Exemptions

    Those portions of the following systems of records that consist of 
(a) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status; (b) information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or (c) reports identifiable 
to an individual compiled at any stage of the process of enforcement of 
the criminal laws from arrest or indictment through release from 
supervision, are exempt from all parts of 5 U.S.C. 552a except 
subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting 
of certain disclosures); (e)(4) (A) through (F) (Publication of 
existence and character of system); (e)(6) (Ensure records are accurate, 
relevant, timely, and complete before disclosure to person other than an 
agency and other than pursuant to a Freedom of Information Act request), 
(7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of 
conduct), (10) (Safeguards), and (11) (Routine use publication); and (i) 
(Criminal penalties):

[[Page 99]]

    A. The Investigative Records System maintained by the Assistant 
Inspector General for Investigations, Office of the Inspector General, 
Office of the Secretary (DOT/OST 100).
    B. Police Warrant Files and Central Files maintained by the Federal 
Aviation Administration (DOT/FAA 807).
    C. The Investigative Records System maintained by the Federal 
Aviation Administration regarding criminal investigations conducted by 
offices of Investigations and Security at headquarters and FAA Regional 
and Center Security Divisions (DOT/FAA 815).
    D. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because 
granting an individual access to investigative records, and granting 
him/her rights to amend/contest that information, interfere with the 
overall law enforcement process by revealing a pending sensitive 
investigation, possibly identify a confidential source, disclose 
information that would constitute an unwarranted invasion of another 
individual's personal privacy, reveal a sensitive investigative 
technique, or constitute a potential danger to the health or safety of 
law enforcement personnel.
    3. From subsection (e)(1), because it is often impossible to 
determine relevancy or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgement and timing: what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, DOT may obtain information concerning the 
violation of laws other than those within the scope of its jurisdiction. 
In the interest of effective law enforcement, DOT should retain this 
information because it may aid in establishing patterns of unlawful 
activity and provide leads for other law enforcement agencies. Further, 
in obtaining evidence during an investigation, information may be 
provided to DOT that relates to matters incidental to the main purpose 
of the investigation but that may be pertinent to the investigative 
jurisdiction of another agency. Such information cannot readily be 
identified.
    4. From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable directly from the subject of the 
information. It is not always feasible to rely upon the subject of an 
investigation as a source for information that may implicate him/her in 
illegal activities. In addition, collecting information directly from 
the subject could seriously compromise an investigation by prematurely 
revealing its nature and scope, or could provide the subject with an 
opportunity to conceal criminal activities, or intimidate potential 
sources, in order to avoid apprehension.
    5. From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.

                      Part II. Specific Exemptions

    A. The following systems of records are exempt from subsection 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 
5 U.S.C. 552a, to the extent that they contain investigatory material 
compiled for law enforcement purposes, in accordance 5 U.S.C. 
552a(k)(2):
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    2. FHWA Investigations Case File System, maintained by the Office of 
Program Review and Investigations, Federal Highway Administration (DOT/
FHWA 214).
    3. Federal Motor Carrier Safety Administration (FMCSA) Enforcement 
Management Information System, maintained by the Chief Counsel, FMCSA 
(DOT/FMCSA 002).
    4. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of 
Interest, maintained by the Associate Administrator for Administration, 
National Highway Traffic Safety Administration (DOT/NHTSA 458).
    5. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security Policy and Planning, Federal Aviation 
Administration.
    6. Suspected Unapproved Parts (SUP) Program, maintained by the 
Federal Aviation Administration (DOT/FAA 852).
    7. Motor Carrier Management Information System (MCMIS), maintained 
by the Federal

[[Page 100]]

Motor Carrier Safety Administration (DOT/FMCSA 001).
    8. Suspicious Activity Reporting (SAR) database, maintained by the 
Office of Intelligence, Security, and Emergency Response, Office of the 
Secretary.
    9. Departmental Office of Civil Rights System (DOCRS).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4)(G), (H), and (I), and (f), because 
granting an individual access to investigative records, and granting 
him/her access to investigative records with that information, could 
interfere with the overall law enforcement process by revealing a 
pending sensitive investigation, possibly identify a confidential 
source, disclose information that would constitute an unwarranted 
invasion of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel.
    B. The following systems of records are exempt from subsections 
(c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records) 
of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):
    1. General Air Transportation Records on Individuals, maintained by 
various offices in the Federal Aviation Administration (DOT/FAA 847).
    2. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    3. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsection (d), because granting an individual access to 
investigative records could interfere with the overall law enforcement 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source, disclose information that would 
constitute an unwarranted invasion of another individual's personal 
privacy, reveal a sensitive investigative technique, or constitute a 
potential danger to the health or safety of law enforcement personnel.
    C. The system of records known as the Alaska Railroad Examination of 
Operating Personnel, maintained by the Alaska Railroad, Federal Railroad 
Administration (DOT/FRA 100), is exempt from the provisions of 
subsection (d) of 5 U.S.C. 552a. The release of these records would 
compromise their value as impartial measurement standards for 
appointment and promotion within the Federal Service.
    D. Those portions of the following systems of records consisting of 
investigatory material compiled for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, or access to classified information or 
used to determine potential for promotion in the armed services, are 
exempt from sections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of 
such material would reveal the identity of a source who provided 
information to the Government under an express or, prior to September 
27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5) 
and (7)):
    1. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    2. Investigative Record System, maintained by the Federal Aviation 
Administration at FAA Regional and Center Air Transportation Security 
Divisions; the Investigations and Security Division, Aeronautical 
Center; and Office of Investigations and Security, Headquarters, 
Washington, D.C. (DOT/FAA 815).
    3. Files pursuant to suitability for employment with National 
Highway Traffic Safety Administration (DOT/NHTSA-457) containing 
confidential investigatory reports.
    4. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 035).
    The purpose of these exemptions is to prevent disclosure of the 
identities of sources who provide information to the government 
concerning the suitability, eligibility, or qualifications of 
individuals for Federal civilian employment, contracts, access to 
classified information, or appointment or promotion in the armed 
services, and who are

[[Page 101]]

expressly or, prior to September 27, 1975, implied promised 
confidentiality (5 U.S.C. 552a(k) (5) and (7)).
    E. Those portions of the following systems of records consisting of 
testing or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal Service are 
exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a:
    1. Reference Files (DOT/NHTSA 457), maintained by the National 
Highway Traffic Safety Administration personnel offices to determine 
fitness for employment prior to hiring.
    The purpose of these exemptions is to preserve the value of these 
records as impartial measurement standards for appointment and promotion 
within the Federal service.
    F. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from 
sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to 
Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency 
Rules) of 5 U.S.C. 552a:
    1. Investigative Record System maintained by the Assistant Inspector 
General for Investigations in the Office of the Inspector General (DOT/
OST 100).
    2. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 035).
    3. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security, Federal Aviation Administration.
    4. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    G. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from 
subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access 
to Records) of 5 U.S.C. 552a:
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 59 
FR 13662, Mar. 23, 1994; 60 FR 43983, Aug. 24, 1995. Redesignated at 62 
FR 23667, May 1, 1997, as amended at 63 FR 2172, Jan. 14, 1998; 63 FR 
4197, Jan. 28, 1998; 66 FR 20407, Apr. 23, 2001; 73 FR 33329, June 12, 
2008; 75 FR 5244, Feb. 2, 2010; 76 FR 79114, Dec. 21, 2011; 77 FR 19944, 
Apr. 3, 2012]



PART 11_PROTECTION OF HUMAN SUBJECTS (Eff. until 12-31-17)--Table of Contents



Sec.
11.101 To what does this policy apply?
11.102 Definitions.
11.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
11.104-11.106 [Reserved]
11.107 IRB membership.
11.108 IRB functions and operations.
11.109 IRB review of research.
11.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
11.111 Criteria for IRB approval of research.
11.112 Review by institution.
11.113 Suspension or termination of IRB approval of research.
11.114 Cooperative research.
11.115 IRB records.
11.116 General requirements for informed consent.
11.117 Documentation of informed consent.
11.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
11.119 Research undertaken without the intention of involving human 
          subjects.
11.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
11.121 [Reserved]
11.122 Use of Federal funds.
11.123 Early termination of research support: Evaluation of applications 
          and proposals.
11.124 Conditions.

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

    Source: 56 FR 28012, 28023, June 18, 1991, unless otherwise noted.

    Effective Date Note: At 82 FR 7274, Jan. 19, 2017, part 11 was 
revised, effective Jan. 1, 2018. For the convenience of the user, the 
revised text is set forth following this part.

[[Page 102]]



Sec.  11.101  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.  11.102(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.  
11.102(e) must be reviewed and approved, in compliance with Sec.  
11.101, Sec.  11.102, and Sec.  11.107 through Sec.  11.117 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 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

[[Page 103]]

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 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 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 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, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec.  11.102  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.

[[Page 104]]

    (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 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.  11.103  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

[[Page 105]]

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.  11.101 (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 
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.  11.103(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 ofice.
    (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.

[[Page 106]]

    (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.  11.101 (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.  11.103 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.  11.103 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, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. Sec.  11.104-11.106  [Reserved]



Sec.  11.107  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.  11.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:

[[Page 107]]

    (a) Follow written procedures in the same detail as described in 
Sec.  11.103(b)(4) and, to the extent required by, Sec.  11.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec.  
11.110), 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.  11.109  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.  11.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec.  11.116, 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.  11.117.
    (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 
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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec.  11.110  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.  11.108(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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]

[[Page 108]]



Sec.  11.111  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 subject's legally authorized representative, in accordance with, and 
to the extent required by Sec.  11.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec.  11.117.
    (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.  11.112  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.  11.113  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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec.  11.114  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.

[[Page 109]]



Sec.  11.115  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.  
11.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  11.103(b)(4) and Sec.  11.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  11.116(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 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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec.  11.116  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

[[Page 110]]

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
    (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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec.  11.117  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.  11.116. This form

[[Page 111]]

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.  11.116 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 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, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec.  11.118  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 subjects' 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.  11.101 (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.  11.119  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.  11.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.

    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

[[Page 112]]

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.  11.121  [Reserved]



Sec.  11.122  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.  11.123  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 criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (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.  11.124  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.

    Effective Date Note: At 82 FR 7274, Jan. 19, 2017, part 11 was 
revised, effective Jan. 19, 2018. For the convenience of the user, the 
revised text is set forth as follows:



PART 11_PROTECTION OF HUMAN SUBJECTS (Eff. 1-19-18)

Sec.
11.101 To what does this policy apply?
11.102 Definitions for purposes of this policy.
11.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
11.104 Exempt research.
11.105-11.106 [Reserved]
11.107 IRB membership.
11.108 IRB functions and operations.
11.109 IRB review of research.
11.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
11.111 Criteria for IRB approval of research.
11.112 Review by institution.
11.113 Suspension or termination of IRB approval of research.
11.114 Cooperative research.
11.115 IRB records.
11.116 General requirements for informed consent.
11.117 Documentation of informed consent.
11.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
11.119 Research undertaken without the intention of involving human 
          subjects.
11.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
11.121 [Reserved]
11.122 Use of Federal funds.
11.123 Early termination of research support: Evaluation of applications 
          and proposals.
11.124 Conditions.

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



Sec.  11.101  To what does this policy apply?

    (a) Except as detailed in Sec.  11.104, this policy applies to all 
research involving human subjects conducted, supported, or otherwise 
subject to regulation by any Federal department or agency that 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

[[Page 113]]

States. Institutions that are engaged in research described in this 
paragraph and institutional review boards (IRBs) reviewing research that 
is subject to this policy must comply with this policy.
    (b) [Reserved]
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy and this judgment shall be 
exercised consistent with the ethical principles of the Belmont 
Report.\62\
---------------------------------------------------------------------------

    \62\ The National Commission for the Protection of Human Subjects of 
Biomedical and Behavioral Research.- Belmont Report. Washington, DC: 
U.S. Department of Health and Human Services. 1979.
---------------------------------------------------------------------------

    (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 Federal 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 that provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations (including tribal law passed by the official governing body 
of an American Indian or Alaska Native tribe) that may otherwise be 
applicable and that provide additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations that 
may otherwise be applicable and that 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. 
In these 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, provided the alternative procedures to 
be followed are consistent with the principles of the Belmont 
Report.\63\ 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, or to the 
equivalent office within the appropriate Federal department or agency, 
and shall also publish them in the Federal Register or in such other 
manner as provided in department or agency procedures. The waiver notice 
must include a statement that identifies the conditions under which the 
waiver will be applied and a justification as to why the waiver is 
appropriate for the research, including how the decision is consistent 
with the principles of the Belmont Report.
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    (j) Federal guidance on the requirements of this policy shall be 
issued only after consultation, for the purpose of harmonization (to the 
extent appropriate), with other Federal departments and agencies that 
have adopted this policy, unless such consultation is not feasible.
    (k) [Reserved]
    (l) Compliance dates and transition provisions:
    (1) For purposes of this section, the pre-2018 Requirements means 
this subpart as published in the 2016 edition of the Code of Federal 
Regulations.
    (2) For purposes of this section, the 2018 Requirements means the 
Federal Policy for the Protection of Human Subjects requirements 
contained in this subpart. The compliance date for Sec.  11.114(b) 
(cooperative research) of the 2018 Requirements is January 20, 2020.
    (3) Research initially approved by an IRB, for which such review was 
waived pursuant to Sec.  11.101(i), or for which a determination was 
made that the research was exempt before January 19, 2018, shall comply 
with the pre-2018 Requirements, except that an institution engaged in 
such research on or after January 19, 2018, may instead comply with the 
2018 Requirements if the institution determines that such ongoing 
research will comply with the 2018 Requirements and an IRB documents 
such determination.
    (4) Research initially approved by an IRB, for which such review was 
waived pursuant to Sec.  11.101(i), or for which a determination was 
made that the research was exempt on or after January 19, 2018, shall 
comply with the 2018 Requirements.
    (m) Severability: Any provision of this part held to be invalid or 
unenforceable by its terms, or as applied to any person or circumstance, 
shall be construed so as to continue to give maximum effect to the 
provision permitted by law, unless such holding

[[Page 114]]

shall be one of utter invalidity or unenforceability, in which event the 
provision shall be severable from this part and shall not affect the 
remainder thereof or the application of the provision to other persons 
not similarly situated or to other dissimilar circumstances.



Sec.  11.102  Definitions for purposes of this policy.

    (a) Certification means the official notification by the institution 
to the supporting Federal department or agency component, 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.
    (b) Clinical trial means a research study in which one or more human 
subjects are prospectively assigned to one or more interventions (which 
may include placebo or other control) to evaluate the effects of the 
interventions on biomedical or behavioral health-related outcomes.
    (c) Department or agency head means the head of any Federal 
department or agency, for example, the Secretary of HHS, and any other 
officer or employee of any Federal department or agency to whom the 
authority provided by these regulations to the department or agency head 
has been delegated.
    (d) Federal department or agency refers to a federal department or 
agency (the department or agency itself rather than its bureaus, offices 
or divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses, studies, analyzes, 
or generates identifiable private information or identifiable 
biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph (e)(5) of this section, or an ``identifiable 
biospecimen,'' as defined in paragraph (e)(6) of this section. This 
assessment shall take place within 1 year and regularly thereafter (at 
least every 4 years). This process will be conducted by collaboration 
among the Federal departments and agencies implementing this policy. Any 
such technologies or techniques will be included on a list of 
technologies or techniques that produce identifiable private information 
or identifiable biospecimens. This list will be published in the Federal 
Register after notice and an opportunity for public comment. The 
Secretary, HHS, shall maintain the list on a publicly accessible Web 
site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (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) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on

[[Page 115]]

behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research. If there is no applicable law 
addressing this issue, legally authorized representative means an 
individual recognized by institutional policy as acceptable for 
providing consent in the nonresearch context on behalf of the 
prospective subject to the subject's participation in the procedure(s) 
involved in the research.
    (j) 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.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political subdivision of a state 
or territory, an Indian tribe, or a foreign government, or a person or 
entity acting under a grant of authority from or contract with such 
public agency, including the employees or agents of such public agency 
or its contractors or persons or entities to whom it has granted 
authority, that is responsible for public health matters as part of its 
official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order solely for criminal justice or criminal investigative 
purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec.  11.103  Assuring compliance with this policy--research conducted 
          or supported by any Federal department or agency.

    (a) Each institution engaged in research that is covered by this 
policy, with the exception of research eligible for exemption under 
Sec.  11.104, and that 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 of 
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 Federal-wide 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. Federal 
departments and agencies will conduct or support research covered by 
this policy only if the institution has provided an assurance that it 
will comply with the requirements of this policy, 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 
(if such certification is required by Sec.  11.103(d)).
    (b) 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.
    (c) The department or agency head may limit the period during which 
any assurance shall remain effective or otherwise condition or restrict 
the assurance.
    (d) Certification is required when the research is supported by a 
Federal department or agency and not otherwise waived under Sec.  
11.101(i) or exempted under Sec.  11.104. For such research, 
institutions shall certify that each proposed research study covered by 
the assurance and this section has been reviewed and approved by the 
IRB. Such certification

[[Page 116]]

must be submitted as prescribed by the Federal department or agency 
component supporting the research. Under no condition shall research 
covered by this section be initiated prior to receipt of the 
certification that the research has been reviewed and approved by the 
IRB.
    (e) For nonexempt research involving human subjects covered by this 
policy (or exempt research for which limited IRB review takes place 
pursuant to Sec.  11.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8)) 
that takes place at an institution in which IRB oversight is conducted 
by an IRB that is not operated by the institution, the institution and 
the organization operating the IRB shall document the institution's 
reliance on the IRB for oversight of the research and the 
responsibilities that each entity will undertake to ensure compliance 
with the requirements of this policy (e.g., in a written agreement 
between the institution and the IRB, by implementation of an 
institution-wide policy directive providing the allocation of 
responsibilities between the institution and an IRB that is not 
affiliated with the institution, or as set forth in a research 
protocol).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy, except 
that such activities must comply with the requirements of this section 
and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]
    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:
    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of public behavior (including 
visual or auditory recording) if at least one of the following criteria 
is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  11.111(a)(7).
    (3)(i) Research involving benign behavioral interventions in 
conjunction with the collection of information from an adult subject 
through verbal or written responses (including data entry) or 
audiovisual recording if the subject prospectively agrees to the 
intervention and information collection and at least one of the 
following criteria is met:
    (A) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (B) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or

[[Page 117]]

    (C) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  11.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless, not physically 
invasive, not likely to have a significant adverse lasting impact on the 
subjects, and the investigator has no reason to think the subjects will 
find the interventions offensive or embarrassing. Provided all such 
criteria are met, examples of such benign behavioral interventions would 
include having the subjects play an online game, having them solve 
puzzles under various noise conditions, or having them decide how to 
allocate a nominal amount of received cash between themselves and 
someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;
    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human subjects cannot readily be ascertained directly or through 
identifiers linked to the subjects, the investigator does not contact 
the subjects, and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or government-collected 
information obtained for nonresearch activities, if the research 
generates identifiable private information that is or will be maintained 
on information technology that is subject to and in compliance with 
section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if 
all of the identifiable private information collected, used, or 
generated as part of the activity will be maintained in systems of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a, and, if 
applicable, the information used in the research was collected subject 
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]
    (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.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec.  11.111(a)(8).

[[Page 118]]

    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was obtained in accordance with Sec.  11.116(a)(1) through 
(4), (a)(6), and (d);
    (ii) Documentation of informed consent or waiver of documentation of 
consent was obtained in accordance with Sec.  11.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec.  11.111(a)(7) and makes the determination 
that the research to be conducted is within the scope of the broad 
consent referenced in paragraph (d)(8)(i) of this section; and (iv) The 
investigator does not include returning individual research results to 
subjects as part of the study plan. This provision does not prevent an 
investigator from abiding by any legal requirements to return individual 
research results.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. Sec.  11.105-11.106  [Reserved]



Sec.  11.107  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 (professional competence), and the diversity of its members, 
including 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. The 
IRB shall be able to ascertain the acceptability of proposed research in 
terms of institutional commitments (including policies and resources) 
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 
category of subjects that is vulnerable to coercion or undue influence, 
such as children, prisoners, individuals with impaired decision-making 
capacity, or economically or educationally disadvantaged persons, 
consideration shall be given to the inclusion of one or more individuals 
who are knowledgeable about and experienced in working with these 
categories of subjects.
    (b) 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.
    (c) 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.
    (d) 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.
    (e) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues that 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec.  11.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses 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 example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) 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) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms of the IRB approval until 
any proposed changes have been reviewed and approved by the IRB, except 
when necessary to eliminate apparent immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy

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or the requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec.  11.110), an IRB must 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.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.109  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, including exempt research activities 
under Sec.  11.104 for which limited IRB review is a condition of 
exemption (under Sec.  11.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and 
(8)).
    (b) An IRB shall require that information given to subjects (or 
legally authorized representatives, when appropriate) as part of 
informed consent is in accordance with Sec.  11.116. The IRB may require 
that information, in addition to that specifically mentioned in Sec.  
11.116, 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.  11.117.
    (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 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research requiring 
review by the convened IRB at intervals appropriate to the degree of 
risk, not less than once per year, except as described in Sec.  
11.109(f).
    (f)(1) Unless an IRB determines otherwise, continuing review of 
research is not required in the following circumstances:
    (i) Research eligible for expedited review in accordance with Sec.  
11.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec.  11.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved.]
    (g) An IRB 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)



Sec.  11.110  Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.

    (a) The Secretary of 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 Secretary 
will evaluate the list at least every 8 years and amend it, as 
appropriate, after consultation with other federal departments and 
agencies and after publication in the Federal Register for public 
comment. A copy of the list is available from the Office for Human 
Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:
    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec.  11.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7) and 
(8).
    (2) 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 nonexpedited procedure set forth in Sec.  11.108(b).
    (c) Each IRB that uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals that 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.

[[Page 120]]



Sec.  11.111  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 that are consistent with sound research 
design and that 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 (e.g., 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. The IRB should be 
particularly cognizant of the special problems of research that involves 
a category of subjects who are vulnerable to coercion or undue 
influence, such as children, prisoners, individuals with impaired 
decision-making capacity, or economically or educationally disadvantaged 
persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by, Sec.  11.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec.  11.117.
    (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.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy, issue guidance to assist IRBs in 
assessing what provisions are adequate to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec.  11.104(d)(7)), the IRB need not make the determinations at 
paragraphs (a)(1) through (7) of this section, and shall make the 
following determinations:
    (i) Broad consent for storage, maintenance, and secondary research 
use of identifiable private information or identifiable biospecimens is 
obtained in accordance with the requirements of Sec.  11.116(a)(1)-(4), 
(a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec.  11.117; and
    (iii) If there is a change made for research purposes in the way the 
identifiable private information or identifiable biospecimens are stored 
or maintained, 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, individuals 
with impaired decision-making capacity, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec.  11.112  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.  11.113  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)



Sec.  11.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that 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.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion of the research that is conducted in the United States. The 
reviewing IRB will be identified by the Federal department or agency 
supporting or conducting the research or proposed by the lead

[[Page 121]]

institution subject to the acceptance of the Federal department or 
agency supporting the research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another IRB, or make 
similar arrangements for avoiding duplication of effort.



Sec.  11.115  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 forms, 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, including the rationale 
for conducting continuing review of research that otherwise would not 
require continuing review as described in Sec.  11.109(f)(1).
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described in Sec.  
11.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  11.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  11.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec.  11.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec.  11.110(a) is more than minimal risk.
    (9) Documentation specifying the responsibilities that an 
institution and an organization operating an IRB each will undertake to 
ensure compliance with the requirements of this policy, as described in 
Sec.  11.103(e).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research that is conducted shall 
be retained for at least 3 years after completion of the research. The 
institution or IRB may maintain the records in printed form, or 
electronically. All records shall be accessible for inspection and 
copying by authorized representatives of the Federal department or 
agency at reasonable times and in a reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is 
described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate, and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key

[[Page 122]]

information that is most likely to assist a prospective subject or 
legally authorized representative in understanding the reasons why one 
might or might not want to participate in the research. This part of the 
informed consent must be organized and presented in a way that 
facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of the reasons why one might or might not 
want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized 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.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (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 that 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 that 
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;
    (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; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:
    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (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) that are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative'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 that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;
    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of

[[Page 123]]

identifiable private information or identifiable biospecimens. Broad 
consent for the storage, maintenance, and secondary research use of 
identifiable private information or identifiable biospecimens (collected 
for either research studies other than the proposed research or 
nonresearch purposes) is permitted as an alternative to the informed 
consent requirements in paragraphs (b) and (c) of this section. If the 
subject or the legally authorized representative is asked to provide 
broad consent, the following shall be provided to each subject or the 
subject's legally authorized representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used for research purposes (which 
period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private information or identifiable biospecimens, and whom 
to contact in the event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for the storage, maintenance, and secondary research use 
of identifiable private information or identifiable biospecimens in 
accordance with the requirements at paragraph (d) of this section, and 
refused to consent, an IRB cannot waive consent for the storage, 
maintenance, or secondary research use of the identifiable private 
information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (e)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) 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:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.

[[Page 124]]

    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.
    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:
    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency component conducting the 
trial on a publicly available Federal Web site that will be established 
as a repository for such informed consent forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. 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 (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.117  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 informed consent 
form approved by the IRB and signed (including in an electronic format) 
by the subject or the subject's legally authorized representative. A 
written copy shall be given to the person signing the informed consent 
form.
    (b) Except as provided in paragraph (c) of this section, the 
informed consent form may be either of the following:
    (1) A written informed consent form that meets the requirements of 
Sec.  11.116. The investigator shall give either the subject or the 
subject's legally authorized representative adequate opportunity to read 
the informed consent form before it is signed; alternatively, this form 
may be read to the subject or the subject's legally authorized 
representative.
    (2) A short form written informed consent form stating that the 
elements of informed consent required by Sec.  11.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec.  
11.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the

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short form itself is to be signed by the subject or the subject's 
legally authorized 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 subject's legally 
authorized representative, in addition to a copy of the short form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the informed consent form and the principal risk would be potential 
harm resulting from a breach of confidentiality. Each subject (or 
legally authorized representative) will be asked whether the subject 
wants documentation linking the subject with the research, and the 
subject's wishes will govern;
    (ii) 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; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community in which signing forms 
is not the norm, that the research presents no more than minimal risk of 
harm to subjects and provided there is an appropriate alternative 
mechanism for documenting that informed consent was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.118  Applications and proposals lacking definite plans for 
          involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to Federal 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 subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. Except for research waived under Sec.  
11.101(i) or exempted under Sec.  11.104, 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 Federal department 
or agency component supporting the research.



Sec.  11.119  Research undertaken without the intention of involving 
          human subjects.

    Except for research waived under Sec.  11.101(i) or exempted under 
Sec.  11.104, 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 Federal department or agency 
component supporting the research, and final approval given to the 
proposed change by the Federal department or agency component.



Sec.  11.120  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 Federal department 
or agency through such officers and employees of the Federal 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.  11.121  [Reserved]



Sec.  11.122  Use of Federal funds.

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



Sec.  11.123  Early termination of research support: Evaluation of 
          applications and proposals.

    (a) The department or agency head may require that Federal 
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.

[[Page 126]]

    (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 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.  11.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head of either the conducting or the 
supporting Federal department or agency 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 15_PROTECTION OF SENSITIVE SECURITY INFORMATION--Table of Contents



Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.

    Authority: 49 U.S.C. 40119.

    Source: 69 FR 28078, May 18, 2004, unless otherwise noted.



Sec.  15.1  Scope.

    (a) Applicability. This part governs the maintenance, safeguarding, 
and disclosure of records and information that the Secretary of DOT has 
determined to be Sensitive Security Information, as defined in Sec.  
15.5. This part does not apply to the maintenance, safeguarding, or 
disclosure of classified national security information, as defined by 
Executive Order 12968, or to other sensitive unclassified information 
that is not SSI, but that nonetheless may be exempt from public 
disclosure under the Freedom of Information Act. In addition, in the 
case of information that has been designated as critical infrastructure 
information under section 214 of the Homeland Security Act, the receipt, 
maintenance, or disclosure of such information by a Federal agency or 
employee is governed by section 214 and any implementing regulations, 
not by this part.
    (b) Delegation. The authority of the Secretary under this part may 
be further delegated within DOT.



Sec.  15.3  Terms used in this part.

    In addition to the terms in Sec.  15.3 of this chapter, the 
following terms apply in this part:
    Administrator means the Under Secretary of Transportation for 
Security referred to in 49 U.S.C. 114(b), or his or her designee.
    Coast Guard means the United States Coast Guard.
    Covered person means any organization, entity, individual, or other 
person described in Sec.  15.7. In the case of an individual, covered 
person includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is receiving a wage, salary, or 
other form of payment. Covered person includes a person applying for 
certification or other form of approval that, if granted, would make the 
person a covered person described in Sec.  15.7.
    DHS means the Department of Homeland Security and any directorate, 
bureau, or other component within the Department of Homeland Security, 
including the United States Coast Guard.
    DOT means the Department of Transportation and any operating 
administration, entity, or office within the Department of 
Transportation, including the Saint Lawrence Seaway Development 
Corporation and the Bureau of Transportation Statistics.
    Federal Flight Deck Officer means a pilot participating in the 
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and 
implementing regulations.
    Maritime facility means any facility as defined in 33 CFR part 101.
    Record includes any means by which information is preserved, 
irrespective of format, including a book, paper,

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drawing, map, recording, tape, film, photograph, machine-readable 
material, and any information stored in an electronic format. The term 
record also includes any draft, proposed, or recommended change to any 
record.
    Security contingency plan means a plan detailing response procedures 
to address a transportation security incident, threat assessment, or 
specific threat against transportation, including details of 
preparation, response, mitigation, recovery, and reconstitution 
procedures, continuity of government, continuity of transportation 
operations, and crisis management.
    Security program means a program or plan and any amendments 
developed for the security of the following, including any comments, 
instructions, or implementing guidance:
    (1) An airport, aircraft, or aviation cargo operation;
    (2) A maritime facility, vessel, or port area; or
    (3) A transportation-related automated system or network for 
information processing, control, and communications.
    Security screening means evaluating a person or property to 
determine whether either poses a threat to security.
    SSI means sensitive security information, as described in Sec.  
15.5.
    Threat image projection system means an evaluation tool that 
involves periodic presentation of fictional threat images to operators 
and is used in connection with x-ray or explosives detection systems 
equipment.
    TSA means the Transportation Security Administration.
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility, port area, vessel, aircraft, train, 
commercial motor vehicle, or pipeline, or a transportation-related 
automated system or network, to determine its vulnerability to unlawful 
interference, whether during the conception, planning, design, 
construction, operation, or decommissioning phase. A vulnerability 
assessment may include proposed, recommended, or directed actions or 
countermeasures to address security concerns.



Sec.  15.5  Sensitive security information.

    (a) In general. In accordance with 49 U.S.C. 40119(b)(1), SSI is 
information obtained or developed in the conduct of security activities, 
including research and development, the disclosure of which the 
Secretary of DOT has determined would--
    (1) Constitute an unwarranted invasion of privacy (including, but 
not limited to, information contained in any personnel, medical, or 
similar file);
    (2) Reveal trade secrets or privileged or confidential information 
obtained from any person; or
    (3) Be detrimental to transportation safety.
    (b) Information constituting SSI. Except as otherwise provided in 
writing by the Secretary of DOT in the interest of public safety or in 
furtherance of transportation security, the following information, and 
records containing such information, constitute SSI:
    (1) Security programs and contingency plans. Any security program or 
security contingency plan issued, established, required, received, or 
approved by DOT or DHS, including--
    (i) Any aircraft operator or airport operator security program or 
security contingency plan under this chapter;
    (ii) Any vessel, maritime facility, or port area security plan 
required or directed under Federal law;
    (iii) Any national or area security plan prepared under 46 U.S.C. 
70103; and
    (iv) Any security incident response plan established under 46 U.S.C. 
70104.
    (2) Security Directives. Any Security Directive or order--
    (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other 
authority;
    (ii) Issued by the Coast Guard under the Maritime Transportation 
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to 
maritime security; or
    (iii) Any comments, instructions, and implementing guidance 
pertaining thereto.
    (3) Information Circulars. Any notice issued by DHS or DOT regarding 
a threat to aviation or maritime transportation, including any--
    (i) Information Circular issued by TSA under 49 CFR 1542.303 or 
1544.305, or other authority; and

[[Page 128]]

    (ii) Navigation or Vessel Inspection Circular issued by the Coast 
Guard related to maritime security.
    (4) Performance specifications. Any performance specification and 
any description of a test object or test procedure, for--
    (i) Any device used by the Federal government or any other person 
pursuant to any aviation or maritime transportation security 
requirements of Federal law for the detection of any weapon, explosive, 
incendiary, or destructive device or substance; and
    (ii) Any communications equipment used by the Federal government or 
any other person in carrying out or complying with any aviation or 
maritime transportation security requirements of Federal law.
    (5) Vulnerability assessments. Any vulnerability assessment 
directed, created, held, funded, or approved by the DOT, DHS, or that 
will be provided to DOT or DHS in support of a Federal security program.
    (6) Security inspection or investigative information. (i) Details of 
any security inspection or investigation of an alleged violation of 
aviation or maritime transportation security requirements of Federal law 
that could reveal a security vulnerability, including the identity of 
the Federal special agent or other Federal employee who conducted the 
inspection or audit.
    (ii) In the case of inspections or investigations performed by TSA, 
this includes the following information as to events that occurred 
within 12 months of the date of release of the information: the name of 
the airport where a violation occurred, the airport identifier in the 
case number, a description of the violation, the regulation allegedly 
violated, and the identity of any aircraft operator in connection with 
specific locations or specific security procedures. Such information 
will be released after the relevant 12-month period, except that TSA 
will not release the specific gate or other location on an airport where 
an event occurred, regardless of the amount of time that has passed 
since its occurrence. During the period within 12 months of the date of 
release of the information, TSA may release summaries of an aircraft 
operator's, but not an airport operator's, total security violations in 
a specified time range without identifying specific violations or 
locations. Summaries may include total enforcement actions, total 
proposed civil penalty amounts, number of cases opened, number of cases 
referred to TSA or FAA counsel for legal enforcement action, and number 
of cases closed.
    (7) Threat information. Any information held by the Federal 
government concerning threats against transportation or transportation 
systems and sources and methods used to gather or develop threat 
information, including threats against cyber infrastructure.
    (8) Security measures. Specific details of aviation or maritime 
transportation security measures, both operational and technical, 
whether applied directly by the Federal government or another person, 
including--
    (i) Security measures or protocols recommended by the Federal 
government;
    (ii) Information concerning the deployments, numbers, and operations 
of Coast Guard personnel engaged in maritime security duties and Federal 
Air Marshals, to the extent it is not classified national security 
information; and
    (iii) Information concerning the deployments and operations of 
Federal Flight Deck Officers, and numbers of Federal Flight Deck 
Officers aggregated by aircraft operator.
    (9) Security screening information. The following information 
regarding security screening under aviation or maritime transportation 
security requirements of Federal law:
    (i) Any procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person.
    (ii) Information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system.
    (iii) Detailed information about the locations at which particular 
screening methods or equipment are used, only if determined by TSA to be 
SSI.

[[Page 129]]

    (iv) Any security screener test and scores of such tests.
    (v) Performance or testing data from security equipment or screening 
systems.
    (vi) Any electronic image shown on any screening equipment monitor, 
including threat images and descriptions of threat images for threat 
image projection systems.
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal government or another person to carry out any aviation 
or maritime transportation security measures required or recommended by 
DHS or DOT.
    (11) Identifying information of certain transportation security 
personnel. (i) Lists of the names or other identifying information that 
identify persons as--
    (A) Having unescorted access to a secure area of an airport or a 
secure or restricted area of a maritime facility, port area, or vessel 
or;
    (B) Holding a position as a security screener employed by or under 
contract with the Federal government pursuant to aviation or maritime 
transportation security requirements of Federal law, where such lists 
are aggregated by airport;
    (C) Holding a position with the Coast Guard responsible for 
conducting vulnerability assessments, security boardings, or engaged in 
operations to enforce maritime security requirements or conduct force 
protection;
    (D) Holding a position as a Federal Air Marshal; or
    (ii) The name or other identifying information that identifies a 
person as a current, former, or applicant for Federal Flight Deck 
Officer.
    (12) Critical aviation or maritime infrastructure asset information. 
Any list identifying systems or assets, whether physical or virtual, so 
vital to the aviation or maritime transportation system that the 
incapacity or destruction of such assets would have a debilitating 
impact on transportation security, if the list is--
    (i) Prepared by DHS or DOT; or
    (ii) Prepared by a State or local government agency and submitted by 
the agency to DHS or DOT.
    (13) Systems security information. Any information involving the 
security of operational or administrative data systems operated by the 
Federal government that have been identified by the DOT or DHS as 
critical to aviation or maritime transportation safety or security, 
including automated information security procedures and systems, 
security inspections, and vulnerability information concerning those 
systems.
    (14) Confidential business information. (i) Solicited or unsolicited 
proposals received by DHS or DOT, and negotiations arising therefrom, to 
perform work pursuant to a grant, contract, cooperative agreement, or 
other transaction, but only to the extent that the subject matter of the 
proposal relates to aviation or maritime transportation security 
measures;
    (ii) Trade secret information, including information required or 
requested by regulation or Security Directive, obtained by DHS or DOT in 
carrying out aviation or maritime transportation security 
responsibilities; and
    (iii) Commercial or financial information, including information 
required or requested by regulation or Security Directive, obtained by 
DHS or DOT in carrying out aviation or maritime transportation security 
responsibilities, but only if the source of the information does not 
customarily disclose it to the public.
    (15) Research and development. Information obtained or developed in 
the conduct of research related to aviation or maritime transportation 
security activities, where such research is approved, accepted, funded, 
recommended, or directed by the DHS or DOT, including research results.
    (16) Other information. Any information not otherwise described in 
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that 
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the 
request of another Federal agency, the Secretary of DOT may designate as 
SSI information not otherwise described in this section.
    (c) Loss of SSI designation. The Secretary of DOT may determine in 
writing that information or records described in paragraph (b) of this 
section do not constitute SSI because they no

[[Page 130]]

longer meet the criteria set forth in paragraph (a) of this section.



Sec.  15.7  Covered persons.

    Persons subject to the requirements of part 15 are:
    (a) Each airport operator and aircraft operator subject to the 
requirements of Subchapter C of this title.
    (b) Each indirect air carrier, as defined in 49 CFR 1540.5.
    (c) Each owner, charterer, or operator of a vessel, including 
foreign vessel owners, charterers, and operators, required to have a 
security plan under Federal or International law.
    (d) Each owner or operator of a maritime facility required to have a 
security plan under the Maritime Transportation Security Act, (Pub. L. 
107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 et 
seq.
    (e) Each person performing the function of a computer reservation 
system or global distribution system for airline passenger information.
    (f) Each person participating in a national or area security 
committee established under 46 U.S.C. 70112, or a port security 
committee.
    (g) Each industry trade association that represents covered persons 
and has entered into a non-disclosure agreement with the DHS or DOT.
    (h) DHS and DOT.
    (i) Each person conducting research and development activities that 
relate to aviation or maritime transportation security and are approved, 
accepted, funded, recommended, or directed by DHS or DOT.
    (j) Each person who has access to SSI, as specified in Sec.  15.11.
    (k) Each person employed by, contracted to, or acting for a covered 
person, including a grantee of DHS or DOT, and including a person 
formerly in such position.
    (l) Each person for which a vulnerability assessment has been 
directed, created, held, funded, or approved by the DOT, DHS, or that 
has prepared a vulnerability assessment that will be provided to DOT or 
DHS in support of a Federal security program.
    (m) Each person receiving SSI under Sec.  1520.15(d) or (e).



Sec.  15.9  Restrictions on the disclosure of SSI.

    (a) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard SSI in that person's 
possession or control from unauthorized disclosure. When a person is not 
in physical possession of SSI, the person must store it a secure 
container, such as a locked desk or file cabinet or in a locked room.
    (2) Disclose, or otherwise provide access to, SSI only to covered 
persons who have a need to know, unless otherwise authorized in writing 
by TSA, the Coast Guard, or the Secretary of DOT.
    (3) Refer requests by other persons for SSI to TSA or the applicable 
component or agency within DOT or DHS.
    (4) Mark SSI as specified in Sec.  15.13.
    (5) Dispose of SSI as specified in Sec.  15.19.
    (b) Unmarked SSI. If a covered person receives a record containing 
SSI that is not marked as specified in Sec.  1520.13, the covered person 
must--
    (1) Mark the record as specified in Sec.  15.13; and
    (2) Inform the sender of the record that the record must be marked 
as specified in Sec.  15.13.
    (c) Duty to report unauthorized disclosure. When a covered person 
becomes aware that SSI has been released to unauthorized persons, the 
covered person must promptly inform TSA or the applicable DOT or DHS 
component or agency.
    (d) Additional requirements for critical infrastructure information. 
In the case of information that is both SSI and has been designated as 
critical infrastructure information under section 214 of the Homeland 
Security Act, any covered person who is a Federal employee in possession 
of such information must comply with the disclosure restrictions and 
other requirements applicable to such information under section 214 and 
any implementing regulations.



Sec.  15.11  Persons with a need to know.

    (a) In general. A person has a need to know SSI in each of the 
following circumstances:

[[Page 131]]

    (1) When the person requires access to specific SSI to carry out 
transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.
    (2) When the person is in training to carry out transportation 
security activities approved, accepted, funded, recommended, or directed 
by DHS or DOT.
    (3) When the information is necessary for the person to supervise or 
otherwise manage individuals carrying out transportation security 
activities approved, accepted, funded, recommended, or directed by the 
DHS or DOT.
    (4) When the person needs the information to provide technical or 
legal advice to a covered person regarding transportation security 
requirements of Federal law.
    (5) When the person needs the information to represent a covered 
person in connection with any judicial or administrative proceeding 
regarding those requirements.
    (b) Federal employees, contractors, and grantees. (1) A Federal 
employee has a need to know SSI if access to the information is 
necessary for performance of the employee's official duties.
    (2) A person acting in the performance of a contract with or grant 
from DHS or DOT has a need to know SSI if access to the information is 
necessary to performance of the contract or grant.
    (c) Background check. The Secretary of DOT may make an individual's 
access to the SSI contingent upon satisfactory completion of a security 
background check and the imposition of procedures and requirements for 
safeguarding SSI that are satisfactory to the Secretary.
    (d) Need to know further limited by the DHS or DOT. For some 
specific SSI, DHS or DOT may make a finding that only specific persons 
or classes of persons have a need to know.

[69 FR 28078, May 18, 2004, as amended at 70 FR 1381, Jan. 7, 2005]



Sec.  15.13  Marking SSI.

    (a) Marking of paper records. In the case of paper records 
containing SSI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (1) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (2) Any title page; and
    (3) Each page of the document.
    (b) Protective marking. The protective marking is: SENSITIVE 
SECURITY INFORMATION.
    (c) Distribution limitation statement. The distribution limitation 
statement is:

    WARNING: This record contains Sensitive Security Information that is 
controlled under 49 CFR parts 15 and 1520. No part of this record may be 
disclosed to persons without a ``need to know'', as defined in 49 CFR 
parts 15 and 1520, except with the written permission of the 
Administrator of the Transportation Security Administration or the 
Secretary of Transportation. Unauthorized release may result in civil 
penalty or other action. For U.S. government agencies, public disclosure 
is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that 
contain SSI, including motion picture films, videotape recordings, audio 
recording, and electronic and magnetic records, a covered person must 
clearly and conspicuously mark the records with the protective marking 
and the distribution limitation statement such that the viewer or 
listener is reasonably likely to see or hear them when obtaining access 
to the contents of the record.



Sec.  15.15  SSI disclosed by DOT.

    (a) In general. Except as otherwise provided in this section, and 
notwithstanding the Freedom of Information Act (5 U.S.C. 552), the 
Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are 
not available for public inspection or copying, nor does DOT release 
such records to persons without a need to know.
    (b) Disclosure under the Freedom of Information Act and the Privacy 
Act. If a record contains both SSI and information that is not SSI, DOT, 
on a proper Freedom of Information Act or Privacy Act request, may 
disclose the record with the SSI redacted, provided the record is not 
otherwise exempt from disclosure under the Freedom of Information Act or 
Privacy Act.

[[Page 132]]

    (c) Disclosures to committees of Congress and the General Accounting 
Office. Nothing in this part precludes DOT from disclosing SSI to a 
committee of Congress authorized to have the information or to the 
Comptroller General, or to any authorized representative of the 
Comptroller General.
    (d) Disclosure in enforcement proceedings--(1) In general. The 
Secretary of DOT may provide SSI to a person in the context of an 
administrative enforcement proceeding when, in the sole discretion of 
the Secretary, access to the SSI is necessary for the person to prepare 
a response to allegations contained in a legal enforcement action 
document issued by DOT.
    (2) Security background check. Prior to providing SSI to a person 
under paragraph (d)(1) of this section, the Secretary of DOT may require 
the individual or, in the case of an entity, the individuals 
representing the entity, and their counsel, to undergo and satisfy, in 
the judgment of the Secretary of DOT, a security background check.
    (e) Other conditional disclosure. The Secretary of DOT may authorize 
a conditional disclosure of specific records or information that 
constitute SSI upon the written determination by the Secretary that 
disclosure of such records or information, subject to such limitations 
and restrictions as the Secretary may prescribe, would not be 
detrimental to transportation safety.
    (f) Obligation to protect information. When an individual receives 
SSI pursuant to paragraph (d) or (e) of this section that individual 
becomes a covered person under Sec.  15.7 and is subject to the 
obligations of a covered person under this part.
    (g) No release under FOIA. When DOT discloses SSI pursuant to 
paragraphs (b) through (e) of this section, DOT makes the disclosure for 
the sole purpose described in that paragraph. Such disclosure is not a 
public release of information under the Freedom of Information Act.
    (h) Disclosure of Critical Infrastructure Information. Disclosure of 
information that is both SSI and has been designated as critical 
infrastructure information under section 214 of the Homeland Security 
Act is governed solely by the requirements of section 214 and any 
implementing regulations.



Sec.  15.17  Consequences of unauthorized disclosure of SSI.

    Violation of this part is grounds for a civil penalty and other 
enforcement or corrective action by DOT, and appropriate personnel 
actions for Federal employees. Corrective action may include issuance of 
an order requiring retrieval of SSI to remedy unauthorized disclosure or 
an order to cease future unauthorized disclosure.



Sec.  15.19  Destruction of SSI.

    (a) DOT. Subject to the requirements of the Federal Records Act (5 
U.S.C. 105), including the duty to preserve records containing 
documentation of a Federal agency's policies, decisions, and essential 
transactions, DOT destroys SSI when no longer needed to carry out the 
agency's function.
    (b) Other covered persons--(1) In general. A covered person must 
destroy SSI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the SSI to carry out 
transportation security measures.
    (2) Exception. Paragraph (b)(1) of this section does not require a 
State or local government agency to destroy information that the agency 
is required to preserve under State or local law.



PART 17_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF TRANSPORTATION PROGRAMS AND ACTIVITIES--Table of Contents



Sec.
17.1 What is the purpose of these regulations?
17.2 What definitions apply to these regulations?
17.3 What programs and activities of the Department are subject to these 
          regulations?
17.4 [Reserved]
17.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
17.6 What procedures apply to the selection of programs and activities 
          under these regulations?
17.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?

[[Page 133]]

17.8 How does the secretary provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
17.9 How does the Secretary receive and respond to comments?
17.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
17.11 What are the Secretary's obligations in interstate situations?
17.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
17.13 May the Secretary waive any provision of these regulations?

    Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as 
amended April 8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204 of the 
Demonstration Cities and Metropolitan Development Act of 1966, as 
amended (42 U.S.C. 3334).

    Source: 48 FR 29272, June 24, 1983, unless otherwise noted.



Sec.  17.1  What is the purpose of these regulations?

    (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 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.  17.2  What definitions apply to these regulations?

    Department means the U.S. Department of Transportation.
    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 
Transportation 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.  17.3  What programs and activities of the Department are subject to these 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.  17.4  [Reserved]



Sec.  17.5  What is the Secretary's obligation 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.



Sec.  17.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec.  17.3 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

[[Page 134]]

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.  17.7  How does the Secretary communicate 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.  17.6, 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.  17.8  How does the Secretary provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or state, areawide, regional and local officials and entities 
at least:
    (1) [Reserved]
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance.
    (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.  17.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec.  17.10 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.  17.6.
    (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.
    (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.  17.10 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.  17.10 of 
this part, when such comments are provided by a

[[Page 135]]

single point of contact, by the applicant, or directly to the Department 
by a commenting party.



Sec.  17.10  How does the Secretary make efforts to accommodate 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.  17.11  What are the Secretary's 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.  17.10 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.  17.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec.  17.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.



Sec.  17.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.

                         PARTS 18	19 [RESERVED]

[[Page 136]]



PART 20_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
20.100 Conditions on use of funds.
20.105 Definitions.
20.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

20.200 Agency and legislative liaison.
20.205 Professional and technical services.
20.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

20.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

20.400 Penalties.
20.405 Penalty procedures.
20.410 Enforcement.

                          Subpart E_Exemptions

20.500 Secretary of Defense.

                        Subpart F_Agency Reports

20.600 Semi-annual compilation.
20.605 Inspector General report.

Appendix A to Part 20--Certification Regarding Lobbying
Appendix B to Part 20--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 49 U.S.C. 
322(a).

    Source: 55 FR 6737, 6756, 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.  20.100  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 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.  20.105  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

[[Page 137]]

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,
    (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

[[Page 138]]

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.  20.110  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
    (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

[[Page 139]]

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.  20.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (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,
    (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.  20.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (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

[[Page 140]]

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.  20.210  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.  20.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (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.
    (b) The reporting requirements in Sec.  20.110 (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

[[Page 141]]

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.  20.400  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.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec.  20.405  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.  20.410  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.

[[Page 142]]



                          Subpart E_Exemptions



Sec.  20.500  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.  20.600  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 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.  20.605  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

[[Page 143]]

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 20--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.

            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.

[[Page 144]]

        Appendix B to Part 20--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.097


[[Page 145]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.098


[[Page 146]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.099


[[Page 147]]





PART 21_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
21.1 Purpose.
21.3 Application of this part.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
21.23 Definitions.

Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a 
          Primary Objective of the Federal Financial Assistance Is To 
          Provide Employment
Appendix C to Part 21--Application of Part 21 to Certain Federal 
          Financial Assistance of the Department of Transportation

    Authority: 42 U.S.C. 2000d-2000d-6.

    Source: 35 FR 10080, June 18, 1970, unless otherwise noted.



Sec.  21.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to 
the end that no person in the United States shall, on the grounds of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from the Department of Transportation.



Sec.  21.3  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. It also applies to money paid, property transferred, or 
other Federal financial assistance extended after the effective date of 
this part pursuant to an application approved before that effective 
date. This part does not apply to:
    (1) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
before the effective date of this part, except where such assistance was 
subject to the title VI regulations of any agency whose responsibilities 
are now exercised by this Department;
    (3) Any assistance to any individual who is the ultimate 
beneficiary; or
    (4) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec.  21.5(c).

The fact that a type of Federal financial assistance is not listed in 
appendix A to this part shall not mean, if title VI of the Act is 
otherwise applicable, that a program is not covered. Other types of 
Federal financial assistance under statutes now in force or hereinafter 
enacted may be added to appendix A to this part.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.5  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited:
    (1) A recipient to which this part applies may not, directly or 
through contractual or other arrangements, on the grounds of race, 
color, or national origin.

[[Page 148]]

    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of person to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program; may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting persons 
to discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program with respect to individuals of a 
particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) Examples demonstrating the application of the provisions of this 
section to certain types of Federal financial assistance administered by 
the Department of Transportation are contained in appendix C of this 
part.
    (7) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, is 
expected to take affirmative action to assure that no person is excluded 
from participation in or denied the benefits of the program or activity 
on the

[[Page 149]]

grounds of race, color, or national origin.
    (c) Employment practices:
    (1) Where a primary objective of the Federal financial assistance to 
a program to which this part applies is to provide employment, a 
recipient or other party subject to this part shall not, directly or 
through contractual or other arrangements, subject a person to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, use 
of facilities, and treatment of employees). Such recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to their race, color, or 
national origin. The requirements applicable to construction employment 
under any such program shall be those specified in or pursuant to Part 
III of Executive Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by the Department which have as a primary objective the 
providing of employment include those set forth in appendix B to this 
part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) A recipient may not make a selection of a site or location of a 
facility if the purpose of that selection, or its effect when made, is 
to exclude individuals from participation in, to deny them the benefits 
of, or to subject them to discrimination under any program or activity 
to which this rule applies, on the grounds of race, color, or national 
origin; or if the purpose is to, or its effect when made will, 
substantially impair the accomplishment of the objectives of this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec.  21.7  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by, an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every awardof Federal 
financial assistance shall require the submission of such an assurance. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, the assurance shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended to 
the program. The Secretary shall specify the form of the foregoing 
assurances, and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and other

[[Page 150]]

participants. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved with Federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
Federal Government, such covenant may also include a condition coupled 
with a right to be reserved by the Department to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the Secretary, such a condition and right of reverter is 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee. In such event if a 
transferee of real property proposes to mortgage or otherwise encumber 
the real property as security for financing construction of new, or 
improvement of existing, facilities on such property for the purposes 
for which the property was transferred, the Secretary may agree, upon 
request of the transferee and if necessary to accomplish such financing, 
and upon such conditions as he deems appropriate, to subordinate such 
right of reversion to the lien of such mortgage or other encumbrance.
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in appendix A to this part) shall as a condition to 
its approval and the extension of any Federal financial assistance 
pursuant to the application: (1) Contain or be accompanied by a 
statement that the program is (or, in the case of a new program, will 
be) conducted in compliance with all requirements imposed by or pursuant 
to this part, and (2) provide or be accompanied by provision for such 
methods of administration for the program as are found by the Secretary 
to give reasonable guarantee that the applicant and all recipients of 
Federal financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.9  Compliance information.

    (a) Cooperation and assistance. The Secretary shall to the fullest 
extent practicable seek the cooperation of recipients in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary timely, complete, and accurate compliance 
reports at such times, and in such form and containing such information, 
as the Secretary may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
part. In the case in which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this part. In general recipients should have available for the 
Secretary racial and ethnic data showing the extent to which members of 
minority groups are beneficiaries of programs receiving Federal 
financial assistance.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary during normal business hours to such of its 
books, records, accounts, and other sources of information, and its 
facilities as may be pertinent to ascertain compliance with this part. 
Where any information required

[[Page 151]]

of a recipient is in the exclusive possession of any other agency, 
institution, or person and this agency, institution, or person fails or 
refuses to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Secretary finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec.  21.11  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes 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 Secretary a 
written complaint. A complaint must be filed not later than 180 days 
after the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary.
    (c) Investigations. The Secretary will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this part. The 
investigation will include, where appropriate, a review of the pertinent 
practices and policies of the recipient, the circumstances under which 
the possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the Secretary will so inform the recipient and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec.  21.13.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the Secretary will so inform the 
recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973]



Sec.  21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to: (1) A 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 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec.  21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec.  21.7 or otherwise fails or 
refuses to comply with a

[[Page 152]]

requirement imposed by or pursuant to that section, Federal financial 
assistance may be refused in accordance with the procedures of paragraph 
(c) of this section. The Department shall not be required to provide 
assistance in such a case during the pendency of the administrative 
proceedings under such paragraph. However, subject to Sec.  21.21, the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The Secretary has advised the applicant or recipient 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 the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (3) The action has been approved by the Secretary pursuant to Sec.  
21.17(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 applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with title VI of the Act by any other means authorized by law shall be 
taken by this Department until:
    (1) The Secretary has determined that compliance cannot be secured 
by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec.  21.15  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  21.13(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either: (1) Fix a date not less than 20 days after the date of such 
notice within which the applicant or recipient may request of the 
Secretary that the matter be scheduled for hearing or (2) advise the 
applicant or recipient that the matter in question has been set down for 
hearing at a stated place and time. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. An applicant 
or recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing under section 602 of the Act and Sec.  21.13(c) and consent to 
the making of a decision on the basis of such information as is 
available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, D.C., at a time fixed by the Secretary 
unless he determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. Hearings 
shall be held before

[[Page 153]]

the Secretary, or at his discretion, before a hearing examiner appointed 
in accordance with section 3105 of title 5, United States Code, or 
detailed under section 3344 of title 5, United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other Federal departments or agencies issued under title 
VI of the Act, the Secretary may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec.  21.17.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.17  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
Secretary for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may, within 30 days after the mailing of such notice of 
initial decision, file with the Secretary his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Secretary may, on his own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the Secretary shall review the initial decision and issue his 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall, 
subject to paragraph (e) of this section, constitute the final decision 
of the Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Secretary conducts the hearing, the applicant 
or

[[Page 154]]

recipient shall be given reasonable opportunity to file with him briefs 
or other written statements of its contentions, and a written copy of 
the final decision of the Secretary shall be sent to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  21.15, a decision shall be made by 
the Secretary on the record and a written copy of such decision shall be 
sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an official of the 
Department, other than the Secretary personally, which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Secretary personally, who may approve such decision, may vacate it, 
or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the Secretary that it 
will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying who 
it believes such official to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record in 
accordance with rules or procedures issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (g)(1) 
of this section.

While proceedings under this paragraph are pending, the sanctions 
imposed by the order issued under paragraph (f) of this section shall 
remain in effect.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.19  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec.  21.21  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of race, color, or 
national origin under any program to which this part applies, and which

[[Page 155]]

authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to any applicant for a recipient 
of such assistance for failure to comply with such requirements, are 
hereby superseded to the extent that such discrimination is prohibited 
by this part, except that nothing in this part may be considered to 
relieve any person of any obligation assumed or imposed under any such 
superseded regulation, order, instruction, or like direction before the 
effective date of this part. Nothing in this part, however, supersedes 
any of the following (including future amendments thereof): (1) 
Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued 
thereunder or (2) any other orders, regulations, or instructions, 
insofar as such orders, regulations, or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this part is inapplicable, or prohibit 
discrimination on any other ground.
    (b) Forms and instructions. The Secretary shall issue and promptly 
make available to all interested persons forms and detailed instructions 
and procedures for effectuating this part as applied to programs to 
which this part applies and for which he is responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department, or to officials of other 
departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this part (other 
than responsibility for final decision as provided in Sec.  21.17), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of title VI and this part to similar 
programs and in similar situations. Any action taken, determination made 
or requirement imposed by an official of another department or agency 
acting pursuant to an assignment of responsibility under this paragraph 
shall have the same effect as though such action had been taken by the 
Secretary of this Department.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.23  Definitions.

    Unless the context requires otherwise, as used in this part:
    (a) Applicant means a person who submits an application, request, or 
plan required to be approved by the Secretary, or by a primary 
recipient, as a condition to eligibility for Federal financial 
assistance, and ``application'' means such an application, request, or 
plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    (e) Program or activity and program mean all of the operations of 
any entity described in paragraphs (e)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 156]]

    (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 (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or Puerto Rico, or any political subdivision 
thereof, or instrumentality thereof, any public or private agency, 
institution, or organization, or other entity, or any individual, in any 
State, territory, possession, the District of Columbia, or Puerto Rico, 
to whom Federal financial assistance is extended, directly or through 
another recipient, including any successor, assignee, or transferee 
thereof, but such term does not include any ultimate beneficiary.
    (g) Secretary means the Secretary of Transportation or, except in 
Sec.  21.17 (e), any person to whom he has delegated his authority in 
the matter concerned.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



    Sec. Appendix A to Part 21--Activities to Which This Part Applies

    1. Use of grants made in connection with Federal-aid highway systems 
(23 U.S.C. 101 et seq.).
    2. Use of grants made in connection with the Highway Safety Act of 
1966 (23 U.S.C. 401 et seq.).
    3. Use of grants in connection with the National Traffic and Motor 
Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).
    4. Lease of real property and the grant of permits, licenses, 
easements and rights-of-way covering real property under control of the 
Coast Guard (14 U.S.C. 93 (n) and (o)).
    5. Utilization of Coast Guard personnel and facilities by any State, 
territory, possession, or political subdivision thereof (14 U.S.C. 
141(a)).
    6. Use of Coast Guard personnel for duty in connection with maritime 
instruction and training by the States, territories, and Puerto Rico (14 
U.S.C. 148).
    7. Use of obsolete and other Coast Guard material by sea scout 
service of Boy Scouts of America, any incorporated unit of the Coast 
Guard auxiliary, and public body or private organization not organized 
for profit (14 U.S.C. 641(a)).
    8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
    9. Use of grants for the support of basic scientific research by 
nonprofit institutions of higher education and nonprofit organizations 
whose primary purpose is conduct of scientific research (42 U.S.C. 
1891).
    10. Use of grants made in connection with the Federal-aid Airport 
Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C. 
1101-1114, 1116-1120).
    11. Use of U.S. land acquired for public airports under:
    a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and
    b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of 
1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50 
U.S.C. App. 1622b).
    12. Activities carried out in connection with the Aviation Education 
Program of the Federal Aviation Administration under sections 305, 311, 
and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 
1346, 1352, and 1354(a)).
    13. Use of grants and loans made in connection with public 
transportation programs (49 U.S.C. chapter 53).
    14. Use of grants made in connection with the High Speed Ground 
Transportation Act, as amended (49 U.S.C. 631-642).

[35 FR 10080, June 18, 1970, as amended at 79 FR 21405, Apr. 16, 2014]

[[Page 157]]



Sec. Appendix B to Part 21--Activities to Which This Part Applies When a 
  Primary Objective of the Federal Financial Assistance Is To Provide 
                               Employment

    1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 et 
seq.).



 Sec. Appendix C to Part 21--Application of Part 21 to Certain Federal 
        Financial Assistance of the Department of Transportation

            Nondiscrimination on Federally Assisted Projects

    (a) Examples. The following examples, without being exhaustive, 
illustrate the application of the nondiscrimination provisions of this 
part on projects receiving Federal financial assistance under the 
programs of certain Department of Transportation operating 
administrations:
    (1) Federal Aviation Administration. (i) The airport sponsor or any 
of his lessees, concessionaires, or contractors may not differentiate 
between members of the public because of race, color, or national origin 
in furnishing, or admitting to, waiting rooms, passenger holding areas, 
aircraft tiedown areas, restaurant facilities, restrooms, or facilities 
operated under the compatible land use concept.
    (ii) The airport sponsor and any of his lessees, concessionaires, or 
contractors must offer to all members of the public the same degree and 
type of service without regard to race, color, or national origin. This 
rule applies to fixed base operators, restaurants, snack bars, gift 
shops, ticket counters, baggage handlers, car rental agencies, 
limousines and taxis franchised by the airport sponsor, insurance 
underwriters, and other businesses catering to the public at the 
airport.
    (iii) An aircraft operator may not be required to park his aircraft 
at a location that is less protected, or less accessible from the 
terminal facilities, than locations offered to others, because of his 
race, color, or national origin.
    (iv) The pilot of an aircraft may not be required to help more 
extensively in fueling operations, and may not be offered less 
incidental service (such as windshield wiping), than other pilots, 
because of his race, color, or national origin.
    (v) No pilot or crewmember eligible for access to a pilot's lounge 
or to unofficial communication facilities such as a UNICOM frequency may 
be restricted in that access because of his race, color, or national 
origin.
    (vi) Access to facilities maintained at the airport by air carriers 
or commercial operators for holders of first-class transportation 
tickets or frequent users of the carrier's or operator's services may 
not be restricted on the basis of race, color, or national origin.
    (vii) Passengers and crewmembers seeking ground transportation from 
the airport may not be assigned to different vehicles, or delayed or 
embarrassed in assignment to vehicles, by the airport sponsor or his 
lessees, concessionaires, or contractors, because of race, color, or 
national origin.
    (viii) Where there are two or more sites having equal potential to 
serve the aeronautical needs of the area, the airport sponsor shall 
select the site least likely to adversely affect existing communities. 
Such site selection shall not be made on the basis of race, color, or 
national origin.
    (ix) Employment at obligated airports, including employment by 
tenants and concessionaires shall be available to all regardless of 
race, creed, color, sex, or national origin. The sponsor shall 
coordinate his airport plan with his local transit authority and the 
Federal Transit Administration to assure public transportation, 
convenient to the disadvantaged areas of nearby communities to enhance 
employment opportunities for the disadvantaged and minority population.
    (x) The sponsor shall assure that the minority business community in 
his area is advised of the opportunities offered by airport concessions, 
and that bids are solicited from such qualified minority firms, and 
awards made without regard to race, color, or national origin.
    (2) Federal Highway Administration. (i) The State, acting through 
its highway department, may not discriminate in its selection and 
retention of contractors, including without limitation, those whose 
services are retained for, or incidental to, construction, planning, 
research, highway safety, engineering, property management, and fee 
contracts and other commitments with person for services and expenses 
incidental to the acquisition of right-of-way.
    (ii) The State may not discriminate against eligible persons in 
making relocation payments and in providing relocation advisory 
assistance where relocation is necessitated by highway right-of-way 
acquisitions.
    (iii) Federal-aid contractors may not discriminate in their 
selection and retention of first-tier subcontractors, and first-tier 
subcontractors may not discriminate in their selection and retention of 
second-tier subcontractors, who participate in Federal-aid highway 
construction, acquisition of right-of-way and related projects, 
including those who supply materials and lease equipment.
    (iv) The State may not discriminate against the traveling public and 
business users of the federally assisted highway in their access to and 
use of the facilities and services provided for public accommodations 
(such as eating, sleeping, rest, recreation,

[[Page 158]]

and vehicle servicing) constructed on, over or under the right-of-way of 
such highways.
    (v) Neither the State, any other persons subject to this part, nor 
its contractors and subcontractors may discriminate in their employment 
practices in connection with highway construction projects or other 
projects assisted by the Federal Highway Administration.
    (vi) The State shall not locate or design a highway in such a manner 
as to require, on the basis of race, color, or national origin, the 
relocation of any persons.
    (vii) The State shall not locate, design, or construct a highway in 
such a manner as to deny reasonable access to, and use thereof, to any 
persons on the basis of race, color, or national origin.
    (3) Federal Transit Administration. (i) Any person who is, or seeks 
to be, a patron of any public vehicle which is operated as a part of, or 
in conjunction with, a project shall be given the same access, seating, 
and other treatment with regard to the use of such vehicle as other 
persons without regard to their race, color, or national origin.
    (ii) No person who is, or seeks to be, an employee of the project 
sponsor or lessees, concessionaires, contractors, licensees, or any 
organization furnishing public transportation service as a part of, or 
in conjunction with, the project shall be treated less favorably than 
any other employee or applicant with regard to hiring, dismissal, 
advancement, wages, or any other conditions and benefits of employment, 
on the basis of race, color, or national origin.
    (iii) No person or group of persons shall be discriminated against 
with regard to the routing, scheduling, or quality of service of 
transportation service furnished as a part of the project on the basis 
of race, color, or national origin. Frequency of service, age and 
quality of vehicles assigned to routes, quality of stations serving 
different routes, and location of routes may not be determined on the 
basis of race, color, or national origin.
    (iv) The location of projects requiring land acquisition and the 
displacement of persons from their residences and businesses may not be 
determined on the basis of race, color, or national origin.
    (b) Obligations of the airport operator--(1) Tenants, contractors, 
and concessionaires. Each airport operator shall require each tenant, 
contractor, and concessionaire who provides any activity, service, or 
facility at the airport under lease, contract with, or franchise from 
the airport, to covenant in a form specified by the Administrator, 
Federal Aviation Administration, that he will comply with the 
nondiscrimination requirements of this part.
    (2) Notification of beneficiaries. The airport operator shall: (i) 
Make a copy of this part available at his office for inspection during 
normal working hours by any person asking for it, and (ii) conspicuously 
display a sign, or signs, furnished by the FAA, in the main public area 
or areas of the airport, stating that discrimination based on race, 
color, or national origin is prohibited on the airport.
    (3) Reports. Each airport owner subject to this part shall, within 
15 days after he receives it, forward to the Area Manager of the FAA 
Area in which the airport is located a copy of each written complaint 
charging discrimination because of race, color, or national origin by 
any person subject to this part, together with a statement describing 
all actions taken to resolve the matter, and the results thereof. Each 
airport operator shall submit to the area manager of the FAA area in 
which the airport is located a report for the preceding year on the date 
and in a form prescribed by the Federal Aviation Administrator.

[35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875, Mar. 
5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975; 79 FR 21405, Apr. 16, 
2014]



PART 22_SHORT-TERM LENDING PROGRAM (STLP)--Table of Contents



                            Subpart A_General

Sec.
22.1 Purpose.
22.3 Definitions.

                Subpart B_Policies applying to STLP loans

22.11 Eligibility criteria.
22.13 Loan terms and conditions.
22.15 Delinquency on Federal, State, and Municipal debt.
22.17 Compliance with child support obligations.
22.19 Credit criteria.

                     Subpart C_Participating Lenders

22.21 Participation criteria.
22.23 Agreements.
22.25 Lender deliverables and delivery schedule.
22.27 Eligible reimbursements to participating lenders.
22.29 DOT access to participating lender files.
22.31 Suspension or revocation of eligibility to participate.
22.33 Termination of participation in the STLP.

                   Subpart D_Loan Application Process

22.41 Application procedures.
22.43 Approvals and denials.
22.45 Allowable fees to borrowers.

[[Page 159]]

                      Subpart E_Loan Administration

22.51 Loan closings.
22.53 Loan monitoring & Servicing requirements.
22.57 Loan reporting requirements.
22.59 Loan modifications.
22.61 Loan guarantee extensions.
22.63 Loan close outs.
22.65 Subordination.
22.67 Delinquent loans and loan defaults.
22.69 Claims process.

    Authority: 49 U.S.C. 332.

    Source: 75 FR 19290, Apr. 14, 2010, unless otherwise noted.



                            Subpart A_General



Sec.  22.1  Purpose.

    The purpose of the DOT OSDBU STLP is to provide financial assistance 
in the form of short-term loans from Participating Lenders that are 
guaranteed by DOT OSDBU, to DBEs and SDBs for the execution of DOT 
funded and supported transportation-related contracts.



Sec.  22.3  Definitions.

    As used in this part:
    Accounts receivable means monies that are due to the borrower for 
work performed or services rendered under a contract, subcontract, or 
purchase order.
    Activation date means the date that the STLP loan is established on 
the Participating Lender's books and recorded as an open loan. It is 
also the date that the borrower can begin to drawn funds from the line 
of credit. Activation date is also the date in which the DOT OSDBU 
guarantee becomes effective.
    Assigned contract means the transportation-related contract(s), 
subcontract(s), and/or purchase order(s) that has been pledged as 
collateral to a STLP loan and perfected through an assignment form 
executed by all appropriate parties.
    Borrower is the obligor of a DOT OSDBU guaranteed loan.
    Cooperative agreement is the written agreement between DOT OSDBU and 
a Participating Lender that outlines the terms and conditions under 
which the lender may submit eligible loan requests to DOT OSDBU for 
consideration of its loan guarantee. The cooperative agreement further 
outlines the responsibilities and requirements of the lender in order to 
participate in the STLP.
    Director means Director, Office of Small and Disadvantaged Business 
Utilization, U.S. Department of Transportation.
    Disadvantaged business enterprise or DBE means a business that is 
certified as such by a recipient of DOT financial assistance as provided 
in 49 CFR part 23 or 49 CFR part 26.
    Guarantee agreement means DOT OSDBU's written agreement with a 
Participating Lender that provides the terms and conditions under which 
DOT OSDBU will guarantee a STLP loan. It is not a contract to make a 
direct loan to the borrower.
    Loan guarantee means the agreement of DOT OSDBU to issue a guarantee 
of payment of a specified portion of an approved STLP loan to the 
Participating Lender, under DOT OSDBU stated terms and conditions, in 
the event that the borrower defaults on the loan.
    Loan purpose means the approved uses for STLP loan proceeds. That 
is, only for short-term working capital needs related to the direct 
costs of an eligible transportation-related contract.
    Other eligible certifications mean the following certifications 
obtained by a borrower through the U.S. Small Business Administration 
(SBA): Small Disadvantaged Business (SDB); Section 8(a) Program 
participant; HUBZONE Empowerment Contracting Program; and Service-
Disabled Veteran Program (SDV).
    Participating Lender (PL) is a bank or other lending institution 
that has agreed to the terms of a cooperative agreement and has been 
formally accepted into the STLP by DOT OSDBU.
    Small and disadvantaged business (SDB) includes 8(a); small 
disadvantaged business; women-owned business, HubZone, and service-
disabled veteran-owned business.
    Socially and economically disadvantaged individual has the same 
meaning as stated in 49 CFR 26.5.
    Technical assistance means service provided by the Participating 
Lender to the DBE or SDB that will enable the DBE or SDB to become more 
capable of

[[Page 160]]

managing its transportation-related contracts. Technical assistance can 
be provided by collaborating with agencies that offer small business 
management counseling such as the SBA, the U. S. Department of 
Commerce's Minority Business Development Centers (MBDCs), the Service 
Corps of Retired Executives (SCORE), Procurement Technical Assistance 
Centers (PTACs), and Small Business Development Centers (SBDCs).
    Transportation-related contract means a contract, subcontract, or 
purchase order, at any tier, for the maintenance, rehabilitation, 
restructuring, improvement, or revitalization of any of the nation's 
modes of transportation that receive DOT funding.
    Work-out means a plan that offers options to avoid loan default or 
collateral foreclosure and/or liquidation that is intended to resolve 
delinquent loans or loans in imminent default, which may include, but 
not limited to: deferring or forgiving principal or interest, reducing 
the borrower's interest rate, extending the loan maturity and the 
government guarantee to the Participating Lender, or postponing 
collection action.



                Subpart B_Policies Applying to STLP Loans



Sec.  22.11  Eligibility criteria.

    (a) Eligible Borrower. To be eligible to apply for a STLP loan 
guarantee, a borrower must meet the following requirements:
    (1) Be a for-profit entity;
    (2) Have an eligible transportation-related contract;
    (3) Demonstrate an eligible use for the desired credit;
    (4) Be an established business with experience in the transportation 
industry and trade for which the STLP loan is sought;
    (5) Be certified as a DBE or have another eligible certification 
issued by the SBA; and
    (6) Be current on all federal, state, and local tax liabilities.
    (b) Eligible Transportation-Related Contract. Any fully-executed 
transportation-related contract, subcontract, or purchase order held 
directly with DOT or with grantees and recipients receiving federal 
funding from DOT for the maintenance, rehabilitation, restructuring, 
improvement or revitalization of any of the nation's modes of 
transportation shall be considered an eligible contract.
    (c) Eligibility Period. A borrower is eligible for participation in 
the STLP for a period up to a total of five (5) years. The STLP renewal 
is not automatic. The borrower has to demonstrate its continued 
eligibility and creditworthiness for STLP and must submit a complete 
application package.
    (1) The continued eligibility of any borrower who would exceed the 
period limit in paragraph (c) of this section will be determined on a 
case-by-case basis by the OSDBU Director and is subject to the following 
provisions:
    (i) The STLP loan guarantee may be reduced; and
    (ii) The STLP loan interest rate may be increased.
    (2) Should any borrower currently in the STLP become ineligible per 
paragraph (a) of this section during the term of a STLP loan, the 
failure to comply with a specific requirement must be brought to the 
immediate attention of all remaining parties.
    (3) Borrower ineligibility may result in a termination of the 
current guarantee.



Sec.  22.13  Loan terms and conditions.

    (a) Amount. The maximum face amount for an individual STLP loan may 
not exceed seven hundred and fifty thousand ($750,000) dollars, unless 
the requested increased amount is authorized by the OSDBU Director.
    (b) Interest Rates. All STLP loans shall have a variable interest 
rate.
    (1) Initial Interest Rate. The base rate guideline for STLP loans is 
the prime rate in effect on the first business day of the month in which 
the STLP loan guarantee is approved by DOT OSDBU. The prime rate is the 
rate printed in a national financial newspaper published each business 
day. The Participating Lender may increase the base rate by the maximum 
allowable percentage points currently allowed by STLP policies and 
procedures and as communicated in subsequent DOT OSDBU notices.

[[Page 161]]

    (2) Frequency of Change. The first change may occur on the first 
calendar day of the month following the initial loan disbursement, using 
the above base rate in effect on the first business day of the month. 
Subsequent interest rate changes may occur no more than monthly.
    (c) Loan Structure and Term. A STLP loan shall be set up as a 
revolving line of credit. The line permits the borrower to request 
principal advances, pay them back, and then re-borrow, not to exceed the 
face value of the line of credit. Participating Lenders are required to 
provide DOT OSDBU written notification of the activation date of each 
line of credit under the STLP. The term of the Federal guarantee of the 
line of credit commences on the activation date.
    (d) Repayment. Interest payments must be made monthly. The principal 
of the loan is repaid as payment from approved accounts receivable are 
received by the Participating Lender through a joint payee check system. 
The assigned contract supporting the STLP loan is the primary source of 
repayment.
    (e) Use of Loan Proceeds. STLP loans must be used to finance short-
term working capital needs, specifically direct costs generated by the 
assigned contract. Proceeds may not be used for the following purposes:
    (1) For long term working capital;
    (2) To repay delinquent State or Federal withholding taxes, local 
taxes, sales taxes or similar funds that should be held in trust or 
escrow; and/or
    (3) To provide funds for the distribution or payment to the owners, 
partners or shareholders of the business; and/or
    (4) To retire short or long-term debt.
    (f) Non-compliance by the DBE in using the STLP loan for purposes 
not consistent with these regulations will result in a non-renewal of 
the STLP loan and in forfeiture of the STLP loan guarantee to the PL on 
any ineligible principal advances requested by the borrower and made by 
the PL.
    (g) Disbursements. STLP funds may only be released to an eligible 
borrower upon the submission and verification of a valid written 
accounts receivable invoice, showing labor and/or materials amounts due 
for completed work on the contract. The Participating Lender must verify 
the accuracy of the invoice with the paying transportation government 
agency, if the borrower is a prime contractor, and/or with the prime 
contractor, if the borrower is a subcontractor. This verification must 
be obtained by the Participating Lender prior to advancing funds. No 
more than 85% of an approved accounts receivable invoice shall be 
advanced to the borrower by the Participating Lender.
    (1) Processing time. Disbursement of STLP funds to the borrower 
should be accomplished within three (3) business days of an accounts 
receivable invoice approval by the paying agency and/or prime 
contractor.
    (2) Electronic funds transfer. If the disbursement of STLP funds is 
being sent to the borrower through a local Participating Lender, the 
disbursement should be made by electronic funds transfer with the 
preferred method of payment being the Automated Clearing House (ACH) 
system.
    (3) Wire transfers. Wire transfers can be used if the ACH system is 
not available or if a same day disbursement is required.
    (4) Joint payee check system. A two-party payee check system is 
required in which the Participating Lender and the borrower will be the 
co-payees of any checks paid to the borrower for performance under the 
assigned contract. Alternative payment methods must have prior written 
approval by DOT OSDBU.
    (h) Personal Guarantees. Individuals who own at least a 20% 
ownership interest in the borrower shall personally guarantee the STLP 
loan. DOT OSDBU, in its discretion and in consulting with the 
Participating Lender, may require other appropriate guarantees for the 
loan as well.
    (i) Collateral. All advances under the STLP loan must be secured, at 
a minimum, by the assignment of the proceeds due under the 
transportation-related contract(s) being funded with loan proceeds (the 
Assigned Contract). The Participating Lender must have first lien 
position on the Accounts Receivable generated by the Assigned Contract. 
The Participating Lender

[[Page 162]]

and/or DOT OSDBU may request additional collateral on any loan request 
or loan guarantee request in order to mitigate the credit risk and 
reduce potential defaults and loan losses.
    (j) Key Person Life Insurance. The assignment of existing life 
insurance policies of personal guarantors or other individuals critical 
to the borrower's operations may be required by the Participating Lender 
and/or DOT OSDBU in certain instances; and it is encouraged for those 
business applicants that do not have a management succession plan 
clearly in place or where a personal guarantee provides nominal 
financial strength to the credit.



Sec.  22.15  Delinquency on Federal, State, or Municipality Debt.

    (a) The borrower must not be delinquent on any Federal, State, or 
municipality debt, including tax debts. Further, none of the principals 
and/or owners of the borrower can be delinquent on any Federal, State, 
or municipality debt, including personal tax debt. The borrower must 
acknowledge its status in writing as part of any STLP loan guarantee 
application. Participating Lenders and the DOT OSDBU must verify the 
borrower's status through the use of business and personal credit 
reports, as well as other appropriate Federal and State databases.
    (b) If any delinquencies are determined during the application 
process, consideration of the request must be suspended until the 
delinquency is satisfactorily resolved, as determined and approved by 
the Director. If the delinquency cannot be resolved within a reasonable 
amount of time, the loan request must be declined.



Sec.  22.17  Compliance with child support obligations.

    Any holder of 50% or more of the ownership interest in the recipient 
of a STLP Loan must certify that he or she is not more than 60 days 
delinquent on any obligation to pay child support arising under:
    (a) An administrative order;
    (b) A court order;
    (c) A repayment agreement between the holder and a custodial parent; 
or
    (d) A repayment agreement between the holder and a State agency 
providing child support enforcement services.



Sec.  22.19  Credit criteria.

    An applicant for a STLP loan must be creditworthy and demonstrate an 
ability to repay the loan as well as satisfactory handling of the 
repayment of past and current debts. The Participating Lender and DOT 
OSDBU shall consider:
    (a) Character, reputation, and credit history of the applicant, its 
principals and owners, and all other guarantors;
    (b) Experience and depth of key management in the industry;
    (c) Financial strength of the business;
    (d) Past earnings, projected earnings and cash flow, and work in 
progress;
    (e) Ability to repay the loan;
    (f) Sufficient equity to operate on a sound financial basis; and
    (g) Capacity to perform under the transportation-related 
contract(s).



                     Subpart C_Participating Lenders



Sec.  22.21  Participation criteria.

    A lender who participates in the STLP must meet the following 
criteria:
    (a) It must operate as a lending institution certified by the 
Federal Deposit Insurance Corporation (FDIC), Federal Reserve Board, 
Office of the Comptroller of the Currency, Office of Thrift Supervision, 
Community Development Corporation (CDC), or Community Development 
Financial Institution (CDFI), for at least five (5) years;
    (b) It must demonstrate a philosophy and history of lending to 
small, disadvantaged and women-owned businesses in their communities. 
Information will be requested by the Director on the number of short-
term loans made to companies listed in paragraph (a)(5) of Sec.  22.11. 
The Participating Lender shall submit information showing its efforts in 
relationship to its overall portfolio;
    (c) It must demonstrate experience in administering monitored lines 
of credit, such as construction loans, accounts receivable financing, 
and/or contract financing for at least two years. Such

[[Page 163]]

experience should be held by any Participating Lender representative 
managing, reviewing or authorizing STLP loan portfolios;
    (d) It must have at least two (2) years experience with other 
federal government lending programs such as U.S. Small Business 
Administration (SBA), Agriculture Rural Development, Bureau of Indian 
Affairs (BIA), Economic Development Administration (EDA), Department of 
Housing and Urban Development (HUD), Export Import Bank of the United 
States and/or state loan programs.
    (e) It must have at least a satisfactory or better Community 
Reinvestment Act (CRA) rating;
    (f) It must designate a Participating Lender representative to 
effectively administer the STLP loan portfolio;
    (g) It must have the ability to evaluate, process, close, disburse, 
service and liquidate STLP loans;
    (h) It must demonstrate the ability to implement, monitor and manage 
a two-party payee check system, in which the Participating Lender and 
borrower are joint payees of any checks paid to the borrower for 
performance under the assigned contract(s);
    (i) It must not currently be debarred or suspended from 
participation in a government contract or delinquent on a government 
debt. The Participating lender must submit a current form DOT F 2309-1 
Certification Regarding Debarment, Suspension. The certification form is 
available at http://www.osdbu.dot.gov/financial/docs/Cert--Debarment--
DOT--F--2309-1.pdf.
    (j) It must be a drug-free workplace. The Participating Lender must 
execute current form DOT F 2307-1 Drug-Free Workplace Act Certification 
For A Grantee Other Than An Individual. The certification form is 
available at http://www.osdbu.dot.gov/financial/docs/Cert--Drug-Free--
DOT--F--2307-1.pdf.; and
    (k) It must certify that no Federal funds will be utilized for 
lobbying by executing a current form DOT F 2308-1 Certificate Regarding 
Lobbying For Contracts, Grants, Loans, and Cooperative Agreements in 
compliance with section 1352, title 21, of the U.S. Code. The 
certification form is available at http://www.osdbu.dot.gov/financial/
docs/Cert--Lobbying--DOT--F--2308-1.pdf.



Sec.  22.23  Agreements.

    (a) DOT OSDBU may enter into a cooperative agreement with a lender 
that meets the criteria defined in Sec.  22.21 in order for the lender 
to become a Participating Lender in the STLP. Such an agreement does not 
obligate DOT OSDBU to participate in any specific proposed loan that a 
lender may submit. The existence of a cooperative agreement does not 
limit the rights of DOT OSDBU to deny a specific loan or establish 
general policies. The current cooperative agreement is available at 
http://www.osdbu.dot.gov/financial/docs/Coop--Agreement.pdf.
    (b) The cooperative agreement is generally for a minimum period of 
twenty-four (24) months. DOT OSDBU will consider the cooperative 
agreement for renewal at the end of the designated term. If a 
cooperative agreement has expired, no further applications for the STLP 
shall be submitted to DOT OSDBU by the Participating Lender until a new 
cooperative agreement is executed by both parties.
    (c) Unless instructed otherwise by DOT OSDBU, after the expiration 
of the cooperative agreement, the Participating Lender will complete the 
documentation of any loans which have been given final DOT OSDBU 
approval prior to expiration of the cooperative agreement.
    (d) Following the expiration of the cooperative agreement, the 
Participating Lender may, subject to the written concurrence of DOT 
OSDBU, sell its STLP loans to another bank or to another Participating 
Lender that assumes the original rights and responsibilities to fund, 
service and collect the loan or loans.



Sec.  22.25  Lender deliverables and delivery schedule.

    All Participating Lenders must adhere to certain required periodic 
reports, submissions, and other actions that are outlined in the 
cooperative agreement and the loan guarantee agreements, as well as to 
the required due dates to DOT OSDBU.

[[Page 164]]



Sec.  22.27  Eligible reimbursements to participating lenders.

    Participating Lenders will be reimbursed by DOT OSDBU for reasonable 
expenses and costs that are incurred in the processing, administration, 
and monitoring of a STLP loan. The Participating Lender will be 
reimbursed as follows:
    (a) Processing/Underwriting Fee. A fee, as specified in the 
cooperative agreement will be reimbursed by DOT OSDBU, with a minimum 
fee of not less than one thousand ($1,000), per approved STLP loan 
guarantee, provided that DOT OSDBU receives proper notification of the 
activation date of the STLP loan.
    (b) Additional Administrative Fee: For total loan amounts of 
$150,000.00 or less, the Participating Lender can request an additional 
one-half (\1/2\) percent administrative fee for the increased loan 
monitoring and administrative assistance required to process the loan. 
The request must be supported with the information specified in the 
cooperative agreement.
    (c) Travel Expenses. For any pre-approved travel expenses, the 
Participating Lender will be reimbursed for certain costs, provided that 
paragraphs (c)(1) and (2) of this section are met:
    (1) A written request for travel, along with a statement of the 
purpose of the travel and proposed cost estimate, is submitted for DOT 
OSDBU for its approval no less than ten (10) business days prior to 
travel; and
    (2) A travel invoice accompanied by a written report explaining the 
findings of the travel is submitted to DOT OSDBU no later than thirty 
(30) days following the approved travel. Payment or reimbursement for 
travel shall be in accordance with the Joint Travel Regulations, Federal 
Travel Regulations and DOD FAR 31.205.46.
    (d) Attorney Fees. Legal fees incurred by the PL may be eligible for 
reimbursement. Prior written approval from DOT OSDBU is required. 
Attorney fees will be reimbursed on a pro-rata basis in proportion to 
the percentage of the government loan guarantee in relation to the total 
loan amount.



Sec.  22.29  DOT access to participating lenders files.

    A Participating Lender must allow the authorized representatives of 
DOT OSDBU, as well as representatives of the Office of Inspector General 
(OIG) and General Accountability Office (GAO), access to its STLP loan 
files to review, inspect, and copy all records and documents pertaining 
to DOT OSDBU guaranteed loans. Record retention of all relevant 
documents and other materials is specified in the cooperative agreement 
between DOT OSDBU and the Participating Lender.



Sec.  22.31  Suspension or revocation of eligibility to participate.

    (a) DOT OSDBU may suspend or revoke the eligibility of a 
Participating Lender to participate in the STLP by giving written notice 
in accordance with the terms and conditions cited in the cooperative 
agreement. Such notice may be given because of a violation of DOT OSDBU 
regulations; a breach of any agreement with DOT OSDBU; a change of 
circumstance resulting in the Participating Lender's inability to meet 
operational requirements; or a failure to engage in prudent lending 
practices. A suspension or revocation will not invalidate a loan 
guarantee previously approved by DOT OSDBU, providing that the specific 
loan was handled in accordance with its guarantee agreement, the 
cooperative agreement and/or these regulations.
    (b) The written notice to suspend or revoke participation in the 
STLP will specify the corrective actions that the Participating Lender 
must take, as well as the time period allowed for cure, prior to DOT 
OSDBU considering a termination of the cooperative agreement.



Sec.  22.33  Termination of participation in the STLP.

    (a) DOT OSDBU Termination for Convenience. DOT OSDBU may terminate a 
cooperative agreement for the convenience of the government, and without 
cause, upon prior written notice of thirty (30) days of its intent to 
terminate. Upon termination, DOT OSDBU shall remain liable on the pro-
rata share of the loan guarantee(s) received

[[Page 165]]

by the PL which received the Director's final approval, prior to the 
effective date of termination.
    (b) Participating Lender's Termination. The Participating Lender may 
terminate a cooperative agreement with written notice of sixty (60) days 
to DOT OSDBU of its intent to terminate. Upon termination, DOT OSDBU 
shall remain liable on the pro-rata share of the loan guarantee(s) 
received by the Participating Lender which received the Director's final 
approval, prior to the effective date of termination of the cooperative 
agreement.
    (c) DOT OSDBU Termination for Cause. DOT OSDBU may terminate a 
cooperative agreement, in whole or in part, at any time before the 
expiration of the term of the cooperative agreement or the expiration of 
any renewal term of the cooperative agreement, and without allowing any 
cure period as described in this section, if it determines that the 
Participating Lender failed to comply with any terms and conditions of 
its cooperative agreement and such failure cannot be reasonably 
addressed. DOT OSDBU shall promptly notify the Participating Lender in 
writing of this determination and the reasons for the termination, 
together with the effective date of termination.
    (d) DOT OSDBU may also terminate for cause any cooperative agreement 
with a Participating Lender that fails to comply with the corrective 
actions requested in a written notice of suspension of revocation within 
the specified cure period, in accordance with the terms and conditions 
further described in the cooperative agreement.



                   Subpart D_Loan Application Process



Sec.  22.41  Application procedures.

    (a) A STLP loan guarantee request application package shall consist 
of the DOT OSDBU Application for Loan Guarantee and supporting 
documentation as outlined below at paragraph (b) of this section. The 
application may be obtained directly from the office of DOT OSDBU, from 
a current Participating Lender, or online from the agency's Web site, 
currently at http://osdbu.dot.gov/documents/pdf/stlp/stlpapp.pdf.
    (b) Supporting documentation may include, but is not limited to, the 
following items: Business, trade or job performance reference letters; 
current DBE or SDB eligibility certification letters and/or affidavit; 
signed and dated borrower certification that all federal, state and 
local taxes are current; business tax returns; business financial 
statements; personal income tax returns; personal financial statements; 
schedule of work in progress; signed and dated copy of transportation-
related contracts; business debt schedule; income and cash flow 
projections; and evidence of bonding and insurance. It also includes, 
from the Participating Lender, the lender's internal credit approval 
memo and analysis and other third-party credit verifications obtained.
    (c) Application packages are submitted directly to a Participating 
Lender, which will perform its own credit review. The Participating 
Lender must initially approve or decline the loan based upon its 
internal analysis of the request. Loans approved by the Participating 
Lender are then forwarded to DOT OSDBU for its STLP eligibility review, 
independent credit review, and for presentation to the DOT OSDBU Loan 
Committee. All loan approvals shall require the final approval of the 
Director, or the Director's designee, for the issuance of a Government 
Loan Guarantee.



Sec.  22.43  Approval or denial.

    If a loan guarantee is approved by DOT OSDBU, a Guarantee Agreement, 
form DOT F 2314-1, will be issued to the Participating Lender. If a loan 
guarantee is declined by the Participating Lender, the Participating 
Lender is responsible for communicating the reasons for the decline to 
the applicant. The Participating Lender must notify the applicant, in 
writing, of the reasons for the decline; and a copy of this notification 
must be sent to DOT OSDBU. If a loan guarantee is declined by the DOT 
OSDBU, DOT OSDBU will be responsible for communicating the reasons for 
the decline to the applicant. The form is available at http://
www.osdbu.dot.gov/financial/docs/Loan--Guarantee--DOT--F--2314-1.pdf.

[[Page 166]]



Sec.  22.45  Allowable fees to borrowers.

    (a) Application Fees. The Participating Lender may charge the 
applicant a non-refundable loan application fee, as determined from time 
to time by DOT OSDBU, for each STLP loan application processed, whether 
a new loan request or a renewal request.
    (b) Reasonable Closing Expenses. Provided the Participating Lender 
charges similar fees to its non-STLP borrowers, the Participating Lender 
may collect reasonable closing expenses from the borrower, provided that 
full disclosure of such fees is made to the borrower prior to the loan 
closing date. These expenses include necessary out-of-pocket expenses to 
third parties such as filing and recordation fees, as well as loan 
closing document preparation fees.



                      Subpart E_Loan Administration



Sec.  22.51  Loan closings.

    (a) The Participating Lender must promptly close all STLP loans in 
accordance with the terms and conditions approved by DOT OSDBU in its 
Guarantee Agreement. The Participating Lender must report circumstances 
concerning any STLP loans not closed within a reasonable time period 
after DOT OSDBU approval.
    (b) The Participating Lender uses its own internal loan closing 
documents and must use standard banking practices and procedures to 
ensure proper execution of the debt and perfection of the collateral. 
The Participating Lender must forward copies of all executed closing 
documents and filings to DOT OSDBU within the time period specified in 
the cooperative agreement.



Sec.  22.53  Loan monitoring and servicing requirements.

    The Participating Lender must review STLP principal advance 
requests, process loan disbursements, and payments, and maintain contact 
with the borrower during the term of the loan. The Participating Lender 
must monitor the progress of the project being financed and the 
borrower's continued compliance with the terms and conditions of the 
loan. The Participating Lender must promptly report any material adverse 
change in the financial condition or business operations of the borrower 
to DOT OSDBU.



Sec.  22.57  Loan reporting requirements.

    The STLP is subject to the requirements of the Federal Credit Reform 
Act of 1990 (FCRA) that includes certain budgeting and accounting 
requirements for Federal credit programs. To fulfill the requirements of 
FCRA, the Participating Lender must provide DOT OSDBU prompt written 
notification of the activation date by the time period specified in the 
cooperative agreement. The Participating Lender must submit to OSDBU a 
form DOT F 2303-1 Bank Verification Loan Activation Form that indicates 
the date in which the loan has been activated/funded. The form is 
available at http://www.osdbu.dot.gov/financial/docs/Loan--Activation--
DOT--F--2303-1.pdf. The Participating Lender must also provide DOT OSDBU 
prompt written notification of the date the loan is repaid and closed. 
The Participating Lender must submit to OSDBU a form DOT F 2304-1 Bank 
Acknowledgement Loan Close-Out Form upon full repayment of the STLP 
loan, or upon expiration of the loan guarantee. The form is available at 
http://www.osdbu.dot.gov/financial/docs/Loan--Close-Out--DOT--F--2304-
1.pdf. To fulfill this requirement, the Participating Lender must also 
submit a monthly report to the DOT OSDBU detailing the previous month's 
activity for their STLP loans. The Participating Lender must submit form 
DOT F 2306-1 Pending Loan Status Report and form DOT F 2305-1 Guaranty 
Loan Status Report. These forms are available at http://
www.osdbu.dot.gov/financial/docs/Pending--Loan--DOT--F--2306-1.xls and 
http://www.osdbu.dot.gov/financial/docs/Guaranty--Loan--DOT--F--2305-
1.xls respectively.



Sec.  22.59  Loan modifications.

    Any modification to the terms of the DOT OSDBU guarantee agreement 
must have prior written approval of the Director, and executed in 
writing as an Addendum to the original guarantee agreement.

[[Page 167]]



Sec.  22.61  Loan guarantee extensions.

    An extension of the original loan guarantee may be requested, in 
writing, by the Participating Lender. The Participating lender must 
submit to OSDBU a form DOT F 2310-1 to request an extension of the 
original loan guarantee for a maximum period of ninety (90) days. The 
form is available at http://www.osdbu.dot.gov/financial/docs/Loan--
Extension--DOT--F--2310-1.pdf. The request must comply with the terms 
and conditions described in the guarantee agreement and with the STLP 
policies and procedures. All extension requests must be approved by the 
Director.



Sec.  22.63  Loan close outs.

    Upon full repayment of the STLP loan, or upon expiration of the loan 
guarantee, the Participating Lender must submit to OSDBU a form DOT F 
2304-1 Bank Acknowledgement Loan Close-Out Form. The form is available 
at http://www.osdbu.dot.gov/financial/docs/Loan--Close-Out--DOT--F--
2304-1.pdf.



Sec.  22.65  Subordination.

    DOT OSDBU must not be placed in a subordinate position to any other 
debt.



Sec.  22.67  Delinquent loans and loan defaults.

    (a) The Participating Lender must bring to the immediate attention 
of the Director any delinquent STLP loans. The Participating Lender and 
DOT OSDBU are jointly responsible for establishing collection procedures 
and must exercise due diligence with respect to collection of delinquent 
debt. The Participating Lender is responsible for initiating actions to 
recover such debt. DOT OSDBU must approve any compromise of a claim, 
resolution of a dispute, suspension or termination of collection action, 
or referral for litigation. A work-out solution will only be considered 
if it is expected to minimize the cost to the federal government in 
resolving repayment delinquencies and/or loan default. They must only be 
used when the borrower is likely to be able to repay the loan under the 
terms of the work-out, and if the cost of establishing the work-out plan 
is less than the costs of loan default and/or foreclosure.
    (b) In an appropriate situation, DOT OSDBU may authorize the 
Participating Lender to undertake legal action deemed necessary to 
collect delinquent loans and DOT will reimburse the Participating Lender 
on a pro rata basis in proportion to the loan guarantee percentage for 
the associated fees and costs, with prior authorization from the 
Director. Penalties and late fees are not eligible for reimbursement. 
Any legal action undertaken by the Participating Lender without OSDBU 
authorization will not be eligible for a pro rata basis reimbursement of 
the associated fees and costs. Net recoveries applicable to accrued 
interest must be applied on a pro rata basis in proportion to the 
formula used during the term of the loan.



Sec.  22.69  Claim process.

    After reasonable efforts have been exhausted to collect on a 
delinquent debt, the Participating Lender may demand in writing that DOT 
OSDBU honor its loan guarantee, provided however that the maximum 
liability of DOT OSDBU shall not at any time exceed the guaranteed 
amount. The borrower must be in default for no less than thirty (30) 
days, and the Participating Lender must have made written demand for 
payment from the borrower, in accordance with the guarantee agreement.



PART 23_PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT CONCESSIONS--Table of Contents



                            Subpart A_General

Sec.
23.1 What are the objectives of this part?
23.3 What do the terms used in this part mean?
23.5 To whom does this part apply?
23.7 Program reviews.
23.9 What are the nondiscrimination and assurance requirements of this 
          part for recipients?
23.11 What compliance and enforcement provisions are used under this 
          part?
23.13 How does the Department issue guidance, interpretations, 
          exemptions, and waivers pertaining to this part?

[[Page 168]]

                        Subpart B_ACDBE programs

23.21 Who must submit an ACDBE program to FAA, and when?
23.23 What administrative provisions must be in a recipient's ACDBE 
          program?
23.25 What measures must recipients include in their ACDBE programs to 
          ensure nondiscriminatory participation of ACDBEs in 
          concessions?
23.27 What information does a recipient have to retain and report about 
          implementation of its ACDBE program?
23.29 What monitoring and compliance procedures must recipients follow?

                    Subpart C_Certification of ACDBEs

23.31 What certification standards and procedures do recipients use to 
          certify ACDBEs?
23.33 What size standards do recipients use to determine the eligibility 
          of ACDBEs?
23.35 What is the personal net worth standard for disadvantaged owners 
          of ACDBEs?
23.37 Are firms certified under 49 CFR part 26 eligible to participate 
          as ACDBEs?
23.39 What other certification requirements apply in the case of ACDBEs?

            Subpart D_Goals, Good Faith Efforts, and Counting

23.41 What is the basic overall goal requirement for recipients?
23.43 What are the consultation requirements in the development of 
          recipients' overall goals?
23.45 What are the requirements for submitting overall goal information 
          to the FAA?
23.47 What is the base for a recipient's goals for concessions other 
          than car rentals?
23.49 What is the base for a recipient's goals for car rentals?
23.51 How are a recipient's overall goals expressed and calculated?
23.53 How do car rental companies count ACDBE participation toward their 
          goals?
23.55 How do recipients count ACDBE participation toward goals for items 
          other than car rentals?
23.57 What happens if a recipient falls short of meeting its overall 
          goals?
23.59 What is the role of the statutory 10 percent goal in the ACDBE 
          program?
23.61 Can recipients use quotas or set-asides as part of their ACDBE 
          programs?

                       Subpart E_Other Provisions

23.71 Does a recipient have to change existing concession agreements?
23.73 What requirements apply to privately-owned or leased terminal 
          buildings?
23.75 Can recipients enter into long-term, exclusive agreements with 
          concessionaires?
23.77 Does this part preempt local requirements?
23.79 Does this part permit recipients to use local geographic 
          preferences?

Appendix A to Part 23--Uniform Report of ACDBE Participation

    Authority: 49 U.S.C. 47107; 42 U.S.C. 2000d; 49 U.S.C. 322; 
Executive Order 12138.

    Source: 70 FR 14508, Mar. 22, 2005, unless otherwise noted.



                            Subpart A_General



Sec.  23.1  What are the objectives of this part?

    This part seeks to achieve several objectives:
    (a) To ensure nondiscrimination in the award and administration of 
opportunities for concessions by airports receiving DOT financial 
assistance;
    (b) To create a level playing field on which ACDBEs can compete 
fairly for opportunities for concessions;
    (c) To ensure that the Department's ACDBE program is narrowly 
tailored in accordance with applicable law;
    (d) To ensure that only firms that fully meet this part's 
eligibility standards are permitted to participate as ACDBEs;
    (e) To help remove barriers to the participation of ACDBEs in 
opportunities for concessions at airports receiving DOT financial 
assistance; and
    (f) To provide appropriate flexibility to airports receiving DOT 
financial assistance in establishing and providing opportunities for 
ACDBEs.



Sec.  23.3  What do the terms used in this part mean?

    Administrator means the Administrator of the Federal Aviation 
Administration (FAA).
    Affiliation has the same meaning the term has in the Small Business 
Administration (SBA) regulations, 13 CFR part 121, except that the 
provisions of SBA regulations concerning affiliation in the context of 
joint ventures (13 CFR Sec.  121.103(f)) do not apply to this part.
    (1) Except as otherwise provided in 13 CFR part 121, concerns are 
affiliates of

[[Page 169]]

each other when, either directly or indirectly:
    (i) One concern controls or has the power to control the other; or
    (ii) A third party or parties controls or has the power to control 
both; or
    (iii) An identity of interest between or among parties exists such 
that affiliation may be found.
    (2) In determining whether affiliation exists, it is necessary to 
consider all appropriate factors, including common ownership, common 
management, and contractual relationships. Affiliates must be considered 
together in determining whether a concern meets small business size 
criteria and the statutory cap on the participation of firms in the 
ACDBE program.
    Airport Concession Disadvantaged Business Enterprise (ACDBE) means a 
concession that is a for-profit small business concern--
    (1) That is at least 51 percent owned by one or more individuals who 
are both socially and economically disadvantaged or, in the case of a 
corporation, in which 51 percent of the stock is owned by one or more 
such individuals; and
    (2) Whose management and daily business operations are controlled by 
one or more of the socially and economically disadvantaged individuals 
who own it.
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
    Car dealership means an establishment primarily engaged in the 
retail sale of new and/or used automobiles. Car dealerships frequently 
maintain repair departments and carry stocks of replacement parts, 
tires, batteries, and automotive accessories. Such establishments also 
frequently sell pickup trucks and vans at retail. In the standard 
industrial classification system, car dealerships are categorized in 
NAICS code 441110.
    Concession means one or more of the types of for-profit businesses 
listed in paragraph (1) or (2) of this definition:
    (1) A business, located on an airport subject to this part, that is 
engaged in the sale of consumer goods or services to the public under an 
agreement with the recipient, another concessionaire, or the owner or 
lessee of a terminal, if other than the recipient.
    (2) A business conducting one or more of the following covered 
activities, even if it does not maintain an office, store, or other 
business location on an airport subject to this part, as long as the 
activities take place on the airport: Management contracts and 
subcontracts, a web-based or other electronic business in a terminal or 
which passengers can access at the terminal, an advertising business 
that provides advertising displays or messages to the public on the 
airport, or a business that provides goods and services to 
concessionaires.

    Example to paragraph (2): A supplier of goods or a management 
contractor maintains its office or primary place of business off the 
airport. However the supplier provides goods to a retail establishment 
in the airport; or the management contractor operates the parking 
facility on the airport. These businesses are considered concessions for 
purposes of this part.

    (3) For purposes of this subpart, a business is not considered to be 
``located on the airport'' solely because it picks up and/or delivers 
customers under a permit, license, or other agreement. For example, 
providers of taxi, limousine, car rental, or hotel services are not 
considered to be located on the airport just because they send shuttles 
onto airport grounds to pick up passengers or drop them off. A business 
is considered to be ``located on the airport,'' however, if it has an 
on-airport facility. Such facilities include in the case of a taxi 
operator, a dispatcher; in the case of a limousine, a booth selling 
tickets to the public; in the case of a car rental company, a counter at 
which its services are sold to the public or a ready return facility; 
and in the case of a hotel operator, a hotel located anywhere on airport 
property.
    (4) Any business meeting the definition of concession is covered by 
this subpart, regardless of the name given to the agreement with the 
recipient, concessionaire, or airport terminal owner or lessee. A 
concession may be

[[Page 170]]

operated under various types of agreements, including but not limited to 
the following:
    (i) Leases.
    (ii) Subleases.
    (iii) Permits.
    (iv) Contracts or subcontracts.
    (v) Other instruments or arrangements.
    (5) The conduct of an aeronautical activity is not considered a 
concession for purposes of this subpart. Aeronautical activities include 
scheduled and non-scheduled air carriers, air taxis, air charters, and 
air couriers, in their normal passenger or freight carrying capacities; 
fixed base operators; flight schools; recreational service providers 
(e.g., sky-diving, parachute-jumping, flying guides); and air tour 
services.
    (6) Other examples of entities that do not meet the definition of a 
concession include flight kitchens and in-flight caterers servicing air 
carriers, government agencies, industrial plants, farm leases, 
individuals leasing hangar space, custodial and security contracts, 
telephone and electric service to the airport facility, holding 
companies, and skycap services under contract with an air carrier or 
airport.
    Concessionaire means a firm that owns and controls a concession or a 
portion of a concession.
    Department (DOT) means the U.S. Department of Transportation, 
including the Office of the Secretary and the Federal Aviation 
Administration (FAA).
    Direct ownership arrangement means a joint venture, partnership, 
sublease, licensee, franchise, or other arrangement in which a firm owns 
and controls a concession.
    Good faith efforts means efforts to achieve an ACDBE goal or other 
requirement of this part that, by their scope, intensity, and 
appropriateness to the objective, can reasonably be expected to meet the 
program requirement.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandmother, grandfather, grandson, 
granddaughter, mother-in-law, father-in-law, brother-in-law, sister-in-
law, or registered domestic partner.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians, including any ANC, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians, or is 
recognized as such by the State in which the tribe, band, nation, group, 
or community resides. See definition of ``tribally-owned concern'' in 
this section.
    Joint venture means an association of an ACDBE firm and one or more 
other firms to carry out a single, for-profit business enterprise, for 
which the parties combine their property, capital, efforts, skills and 
knowledge, and in which the ACDBE is responsible for a distinct, clearly 
defined portion of the work of the contract and whose shares in the 
capital contribution, control, management, risks, and profits of the 
joint venture are commensurate with its ownership interest. Joint 
venture entities are not certified as ACDBEs.
    Large hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least one percent of all 
passenger boardings in the United States.
    Management contract or subcontract means an agreement with a 
recipient or another management contractor under which a firm directs or 
operates one or more business activities, the assets of which are owned, 
leased, or otherwise controlled by the recipient. The managing agent 
generally receives, as compensation, a flat fee or a percentage of the 
gross receipts or profit from the business activity. For purposes of 
this subpart, the business activity operated or directed by the managing 
agent must be other than an aeronautical activity, be located at an 
airport subject to this subpart, and be engaged in the sale of consumer 
goods or provision of services to the public.
    Material amendment means a significant change to the basic rights or 
obligations of the parties to a concession agreement. Examples of 
material amendments include an extension to the term not provided for in 
the original agreement or a substantial increase in the scope of the 
concession privilege. Examples of nonmaterial amendments include a 
change in the name of

[[Page 171]]

the concessionaire or a change to the payment due dates.
    Medium hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least 0.25 percent of 
all passenger boardings in the United States but less than one percent 
of such passenger boardings.
    Native Hawaiian means any individual whose ancestors were natives, 
prior to 1778, of the area that now comprises the State of Hawaii.
    Native Hawaiian Organization means any community service 
organization serving Native Hawaiians in the State of Hawaii that is a 
not-for-profit organization chartered by the State of Hawaii, and is 
controlled by Native Hawaiians
    Noncompliance means that a recipient has not correctly implemented 
the requirements of this part.
    Nonhub primary airport means a commercial service airport that has 
more than 10,000 passenger boardings each year but less than 0.05 
percent of all passenger boardings in the United States.
    Part 26 means 49 CFR part 26, the Department of Transportation's 
disadvantaged business enterprise regulation for DOT-assisted contracts.
    Personal net worth means the net value of the assets of an 
individual remaining after total liabilities are deducted. An 
individual's personal net worth (PNW) does not include the following:
    (1) The individual's ownership interest in an ACDBE firm or a firm 
that is applying for ACDBE certification; (2) The individual's equity in 
his or her primary place of residence; and (3) Other assets that the 
individual can document are necessary to obtain financing or a franchise 
agreement for the initiation or expansion of his or her ACDBE firm (or 
have in fact been encumbered to support existing financing for the 
individual's ACDBE business) to a maximum of $3 million. The 
effectiveness of this paragraph (3) of this definition is suspended with 
respect to any application for ACDBE certification made or any financing 
or franchise agreement obtained after June 20, 2012.
    Primary airport means a commercial service airport that the 
Secretary determines to have more than 10,000 passengers enplaned 
annually.
    Primary industry classification means the North American Industrial 
Classification System (NAICS) code designation that best describes the 
primary business of a firm. The NAICS Manual is available through the 
National Technical Information Service (NTIS) of the U.S. Department of 
Commerce (Springfield, VA, 22261). NTIS also makes materials available 
through its Web site (http://www.ntis.gov/naics).
    Primary recipient means a recipient to which DOT financial 
assistance is extended through the programs of the FAA and which passes 
some or all of it on to another recipient.
    Principal place of business means the business location where the 
individuals who manage the firm's day-to-day operations spend most 
working hours and where top management's business records are kept. If 
the offices from which management is directed and where business records 
are kept are in different locations, the recipient will determine the 
principal place of business for ACDBE program purposes.
    Race-conscious means a measure or program that is focused 
specifically on assisting only ACDBEs, including women-owned ACDBEs. For 
the purposes of this part, race-conscious measures include gender-
conscious measures.
    Race-neutral means a measure or program that is, or can be, used to 
assist all small businesses, without making distinctions or 
classifications on the basis of race or gender.
    Secretary means the Secretary of Transportation or his/her designee.
    Set-aside means a contracting practice restricting eligibility for 
the competitive award of a contract solely to ACDBE firms.
    Small Business Administration or SBA means the United States Small 
Business Administration.
    Small business concern means a for profit business that does not 
exceed the size standards of Sec.  23.33 of this part.
    Small hub airport means a publicly owned commercial service airport 
that has a number of passenger boardings

[[Page 172]]

equal to at least 0.05 percent of all passenger boardings in the United 
States but less than 0.25 percent of such passenger boardings.
    Socially and economically disadvantaged individual means any 
individual who is a citizen (or lawfully admitted permanent resident) of 
the United States and who is--
    (1) Any individual determined by a recipient to be a socially and 
economically disadvantaged individual on a case-by-case basis.
    (2) Any individual in the following groups, members of which are 
rebuttably presumed to be socially and economically disadvantaged:
    (i) ``Black Americans,'' which includes persons having origins in 
any of the Black racial groups of Africa;
    (ii) ``Hispanic Americans,'' which includes persons of Mexican, 
Puerto Rican, Cuban, Dominican, Central or South American, or other 
Spanish or Portuguese culture or origin, regardless of race;
    (iii) ``Native Americans,'' which includes persons who are American 
Indians, Eskimos, Aleuts, or Native Hawaiians;
    (iv) ``Asian-Pacific Americans,'' which includes persons whose 
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, 
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the 
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the 
Pacific Islands (Republic of Palau), the Commonwealth of the Northern 
Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated 
States of Micronesia, or Hong Kong;
    (v) ``Subcontinent Asian Americans,'' which includes persons whose 
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives 
Islands, Nepal or Sri Lanka;
    (vi) Women;
    (vii) Any additional groups whose members are designated as socially 
and economically disadvantaged by the SBA, at such time as the SBA 
designation becomes effective.
    Recipient means any entity, public or private, to which DOT 
financial assistance is extended, whether directly or through another 
recipient, through the programs of the FAA.
    Tribally-owned concern means any concern at least 51 percent owned 
by an Indian tribe as defined in this section.
    You refers to a recipient, unless a statement in the text of this 
part or the context requires otherwise (i.e., ``You must do XYZ'' means 
that recipients must do XYZ).

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007; 77 
FR 36931, June 20, 2012]



Sec.  23.5  To whom does this part apply?

    If you are a recipient that has received a grant for airport 
development at any time after January 1988 that was authorized under 
Title 49 of the United States Code, this part applies to you.



Sec.  23.7  Program reviews.

    In 2010, and thereafter at the discretion of the Secretary, the 
Department will initiate a review of the ACDBE program to determine 
what, if any, modifications should be made to this part.

[75 FR 16358, Apr. 1, 2010]



Sec.  23.9  What are the nondiscrimination and assurance requirements of this part for recipients?

    (a) As a recipient, you must meet the non-discrimination 
requirements provided in part 26, Sec.  26.7 with respect to the award 
and performance of any concession agreement, management contract or 
subcontract, purchase or lease agreement, or other agreement covered by 
this subpart.
    (b) You must also take all necessary and reasonable steps to ensure 
nondiscrimination in the award and administration of contracts and 
agreements covered by this part.
    (c) You must include the following assurances in all concession 
agreements and management contracts you execute with any firm after 
April 21, 2005:
    (1) ``This agreement is subject to the requirements of the U.S. 
Department of Transportation's regulations, 49 CFR part 23. The 
concessionaire or contractor agrees that it will not discriminate 
against any business owner because of the owner's race, color, national 
origin, or sex in connection with

[[Page 173]]

the award or performance of any concession agreement, management 
contract, or subcontract, purchase or lease agreement, or other 
agreement covered by 49 CFR part 23.
    (2) ``The concessionaire or contractor agrees to include the above 
statements in any subsequent concession agreement or contract covered by 
49 CFR part 23, that it enters and cause those businesses to similarly 
include the statements in further agreements.''



Sec.  23.11  What compliance and enforcement provisions are used under this part?

    The compliance and enforcement provisions of part 26 (Sec. Sec.  
26.101 and 26.105 through 26.109) apply to this part in the same way 
that they apply to FAA recipients and programs under part 26.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



Sec.  23.13  How does the Department issue guidance, interpretations, exemptions, and waivers pertaining to this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 23 
and issued after April 21, 2005, express the official positions and 
views of the Department of Transportation or the Federal Aviation 
Administration.
    (b) The Secretary of Transportation, Office of the Secretary of 
Transportation, and the FAA may issue written interpretations of or 
written guidance concerning this part. Written interpretations and 
guidance are valid, and express the official positions and views of the 
Department of Transportation or the FAA, only if they are issued over 
the signature of the Secretary of Transportation or if they contain the 
following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 23.

    (c) You may apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation or the FAA. The Secretary will grant the 
request only if it documents special or exceptional circumstances, not 
likely to be generally applicable, and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impractical. You must 
agree to take any steps that the Department specifies to comply with the 
intent of the provision from which an exemption is granted. The 
Secretary will issue a written response to all exemption requests.
    (d) You can apply for a waiver of any provision of subpart B or D of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate an ACDBE program that achieves the objectives of this part by 
means that may differ from one or more of the requirements of subpart B 
or D of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the FAA. The application must include a 
specific program proposal and address how you will meet the criteria of 
paragraph (d)(2) of this section. Before submitting your application, 
you must have had public participation in developing your proposal, 
including consultation with the ACDBE community and at least one public 
hearing. Your application must include a summary of the public 
participation process and the information gathered through it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of ACDBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or D of this part;
    (ii) Conditions at your airport are appropriate for implementing the 
proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or group in access to concession opportunities or other 
benefits of the program; and
    (iv) Your proposal is consistent with applicable law and FAA program 
requirements.

[[Page 174]]

    (3) The FAA Administrator has the authority to approve your 
application. If the Administrator grants your application, you may 
administer your ACDBE program as provided in your proposal, subject to 
the following conditions:
    (i) ACDBE eligibility is determined as provided in subpart C of this 
part, and ACDBE participation is counted as provided in Sec. Sec.  23.53 
through 23.55.
    (ii) Your level of ACDBE participation continues to be consistent 
with the objectives of this part;
    (iii) There is a reasonable limitation on the duration of the your 
modified program; and
    (iv) Any other conditions the Administrator makes on the grant of 
the waiver.
    (4) The Administrator may end a program waiver at any time and 
require you to comply with this part's provisions. The Administrator may 
also extend the waiver, if he or she determines that all requirements of 
this section continue to be met. Any such extension shall be for no 
longer than period originally set for the duration of the program 
waiver.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



                        Subpart B_ACDBE Programs



Sec.  23.21  Who must submit an ACDBE program to FAA, and when?

    (a) Except as provided in paragraph (e) of this section, if you are 
a primary airport that has or was required to have a concessions DBE 
program prior to April 21, 2005, you must submit a revisesd ACDBE 
program meeting the requirements of this part to the appropriate FAA 
regional office for approval.
    (1) You must submit this revised program on the same schedule 
provided for your first submission of overall goals in Sec.  23.45(a) of 
this part.
    (2) Timely submission and FAA approval of your revised ACDBE program 
is a condition of eligibility for FAA financial assistance.
    (3) Until your new ACDBE program is submitted and approved, you must 
continue to implement your concessions DBE program that was in effect 
before the effective date of this amendment to part 23, except with 
respect to any provision that is contrary to this part.
    (b) If you are a primary airport that does not now have a DBE 
concessions program, and you apply for a grant of FAA funds for airport 
planning and development under 49 U.S.C. 47107 et seq., you must submit 
an ACDBE program to the FAA at the time of your application. Timely 
submission and FAA approval of your ACDBE program are conditions of 
eligibility for FAA financial assistance.
    (c) If you are the owner of more than one airport that is required 
to have an ACDBE program, you may implement one plan for all your 
locations. If you do so, you must establish a separate ACDBE goal for 
each location.
    (d) If you make any significant changes to your ACDBE program at any 
time, you must provide the amended program to the FAA for approval 
before implementing the changes.
    (e) If you are a non-primary airport, non-commercial service 
airport, a general aviation airport, reliever airport, or any other 
airport that does not have scheduled commercial service, you are not 
required to have an ACDBE program. However, you must take appropriate 
outreach steps to encourage available ACDBEs to participate as 
concessionaires whenever there is a concession opportunity.



Sec.  23.23  What administrative provisions must be in a recipient's ACDBE program?

    (a) If, as a recipient that must have an ACDBE program, the program 
must include provisions for a policy statement, liaison officer, and 
directory, as provided in part 26, Sec. Sec.  26.23, 26.25, and 26.31, 
as well as certification of ACDBEs as provided by Subpart C of this 
part. You must include a statement in your program committing you to 
operating your ACDBE program in a nondiscriminatory manner.
    (b) You may combine your provisions for implementing these 
requirements under this part and part 26 (e.g., a single policy 
statement can cover both Federally-assisted airport contracts and 
concessions; the same individual can act as the liaison officer for both 
part 23 and part 26 matters).

[[Page 175]]



Sec.  23.25  What measures must recipients include in their ACDBE programs to ensure nondiscriminatory participation of ACDBEs in concessions?

    (a) You must include in your ACDBE program a narrative description 
of the types of measures you intend to make to ensure nondiscriminatory 
participation of ACDBEs in concession and other covered activities.
    (b) Your ACDBE program must provide for setting goals consistent 
with the requirements of Subpart D of this part.
    (c) Your ACDBE program must provide for seeking ACDBE participation 
in all types of concession activities, rather than concentrating 
participation in one category or a few categories to the exclusion of 
others.
    (d) Your ACDBE program must include race-neutral measures that you 
will take. You must maximize the use of race-neutral measures, obtaining 
as much as possible of the ACDBE participation needed to meet overall 
goals through such measures. These are responsibilities that you 
directly undertake as a recipient, in addition to the efforts that 
concessionaires make, to obtain ACDBE participation. The following are 
examples of race-neutral measures you can implement:
    (1) Locating and identifying ACDBEs and other small businesses who 
may be interested in participating as concessionaires under this part;
    (2) Notifying ACDBEs of concession opportunities and encouraging 
them to compete, when appropriate;
    (3) When practical, structuring concession activities so as to 
encourage and facilitate the participation of ACDBEs
    (4) Providing technical assistance to ACDBEs in overcoming 
limitations, such as inability to obtain bonding or financing;
    (5) Ensuring that competitors for concession opportunities are 
informed during pre-solicitation meetings about how the recipient's 
ACDBE program will affect the procurement process;
    (6) Providing information concerning the availability of ACDBE firms 
to competitors to assist them in obtaining ACDBE participation; and
    (7) Establishing a business development program (see part 26, Sec.  
26.35); technical assistance program; or taking other steps to foster 
ACDBE participation in concessions.
    (e) Your ACDBE program must also provide for the use of race-
conscious measures when race-neutral measures, standing alone, are not 
projected to be sufficient to meet an overall goal. The following are 
examples of race-conscious measures you can implement:
    (1) Establishing concession-specific goals for particular concession 
opportunities.
    (i) If the objective of the concession-specific goal is to obtain 
ACDBE participation through a direct ownership arrangement with a ACDBE, 
calculate the goal as a percentage of the total estimated annual gross 
receipts from the concession.
    (ii) If the goal applies to purchases and/or leases of goods and 
services, calculate the goal by dividing the estimated dollar value of 
such purchases and/or leases from ACDBEs by the total estimated dollar 
value of all purchases to be made by the concessionaire.
    (iii) To be eligible to be awarded the concession, competitors must 
make good faith efforts to meet this goal. A competitor may do so either 
by obtaining enough ACDBE participation to meet the goal or by 
documenting that it made sufficient good faith efforts to do so.
    (iv) The administrative procedures applicable to contract goals in 
part 26, Sec.  26.51-53, apply with respect to concession-specific 
goals.
    (2) Negotiation with a potential concessionaire to include ACDBE 
participation, through direct ownership arrangements or measures, in the 
operation of the concession.
    (3) With the prior approval of FAA, other methods that take a 
competitor's ability to provide ACDBE participation into account in 
awarding a concession.
    (f) Your ACDBE program must require businesses subject to ACDBE 
goals at the airport (except car rental companies) to make good faith 
efforts to explore all available options to meet goals, to the maximum 
extent practicable, through direct ownership arrangements with DBEs.

[[Page 176]]

    (g) As provided in Sec.  23.61 of this part, you must not use set-
asides and quotas as means of obtaining ACDBE participation.



Sec.  23.27  What information does a recipient have to retain and report about implementation of its ACDBE program?

    (a) As a recipient, you must retain sufficient basic information 
about your program implementation, your certification of ACDBEs, and the 
award and performance of agreements and contracts to enable the FAA to 
determine your compliance with this part. You must retain this data for 
a minimum of three years following the end of the concession agreement 
or other covered contract.
    (b) Beginning March 1, 2006, you must submit an annual report on 
ACDBE participation using the form found in appendix A to this part. You 
must submit the report to the appropriate FAA Regional Civil Rights 
Office.



Sec.  23.29  What monitoring and compliance procedures must recipients follow?

    As a recipient, you must implement appropriate mechanisms to ensure 
compliance with the requirements of this part by all participants in the 
program. You must include in your concession program the specific 
provisions to be inserted into concession agreements and management 
contracts setting forth the enforcement mechanisms and other means you 
use to ensure compliance. These provisions must include a monitoring and 
enforcement mechanism to verify that the work committed to ACDBEs is 
actually performed by the ACDBEs. This mechanism must include a written 
certification that you have reviewed records of all contracts, leases, 
joint venture agreements, or other concession-related agreements and 
monitored the work on-site at your airport for this purpose. The 
monitoring to which this paragraph refers may be conducted in 
conjunction with monitoring of concession performance for other 
purposes.

[77 FR 36931, June 20, 2012]



            Subpart C_Certification and Eligibility of ACDBEs



Sec.  23.31  What certification standards and procedures do recipients use to certify ACDBEs?

    (a) As a recipient, you must use, except as provided in this 
subpart, the procedures and standards of part 26, Sec. Sec.  26.61-91 
for certification of ACDBEs to participate in your concessions program. 
Your ACDBE program must incorporate the use of these standards and 
procedures and must provide that certification decisions for ACDBEs will 
be made by the Unified Certification Program (UCP) in your state (see 
part 26, Sec.  26.81).
    (b) The UCP's directory of eligible DBEs must specify whether a firm 
is certified as a DBE for purposes of part 26, an ACDBE for purposes of 
part 23, or both.
    (c) As an airport or UCP, you must review the eligibility of 
currently certified ACDBE firms to make sure that they meet the 
eligibility standards of this part.
    (1) You must complete these reviews as soon as possible, but in no 
case later than April 21, 2006 or three years from the anniversary date 
of each firm's most recent certification, whichever is later.
    (2) You must direct all currently certified ACDBEs to submit to you 
by April 21, 2006, a personal net worth statement, a certification of 
disadvantage, and an affidavit of no change.



Sec.  23.33  What size standards do recipients use to determine the eligibility of ACDBEs?

    (a) As a recipient, you must, except as provided in paragraph (b) of 
this section, treat a firm as a small business eligible to be certified 
as an ACDBE if its gross receipts, averaged over the firm's previous 
three fiscal years, do not exceed $56.42 million.
    (b) The following types of businesses have size standards that 
differ from the standard set forth in paragraph (a) of this section:
    (1) Banks and financial institutions: $1 billion in assets;
    (2) Car rental companies: $75.23 million average annual gross 
receipts over the firm's three previous fiscal years, as

[[Page 177]]

adjusted by the Department for inflation every two years from April 3, 
2009.
    (3) Pay telephones: 1,500 employees;
    (4) Automobile dealers: 350 employees.
    (c) The Department adjusts the numbers in paragraphs (a) and (b)(2) 
of this section using the Department of Commerce price deflators for 
purchases by State and local governments as the basis for this 
adjustment. The Department publishes a Federal Register document 
informing the public of each adjustment.

[77 FR 36931, June 20, 2012]



Sec.  23.35  What is the personal net worth standard for disadvantaged owners of ACDBEs?

    The personal net worth standard used in determining eligibility for 
purposes of this part is $1.32 million. Any individual who has a 
personal net worth exceeding this amount is not a socially and 
economically disadvantaged individual for purposes of this part, even if 
the individual is a member of a group otherwise presumed to be 
disadvantaged.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.37  Are firms certified under 49 CFR part 26 eligible to participate as ACDBEs?

    (a) You must presume that a firm that is certified as a DBE under 
part 26 is eligible to participate as an ACDBE. By meeting the size, 
disadvantage (including personal net worth), ownership and control 
standards of part 26, the firm will have also met the eligibility 
standards for part 23.
    (b) However, before certifying such a firm, you must ensure that the 
disadvantaged owners of a DBE certified under part 26 are able to 
control the firm with respect to its activity in the concessions 
program. In addition, you are not required to certify a part 26 DBE as a 
part 23 ACDBE if the firm does not do work relevant to the airport's 
concessions program.



Sec.  23.39  What other certification requirements apply in the case of ACDBEs?

    (a) The provisions of part 26, Sec. Sec.  26.83 (c)(2) through 
(c)(6) do not apply to certifications for purposes of this part. 
Instead, in determining whether a firm is an eligible ACDBE, you must 
take the following steps:
    (1) Obtain the resumes or work histories of the principal owners of 
the firm and personally interview these individuals;
    (2) Analyze the ownership of stock of the firm, if it is a 
corporation;
    (3) Analyze the bonding and financial capacity of the firm;
    (4) Determine the work history of the firm, including any concession 
contracts or other contracts it may have received;
    (5) Obtain or compile a list of the licenses of the firm and its key 
personnel to perform the concession contracts or other contracts it 
wishes to receive;
    (6) Obtain a statement from the firm of the type(s) of concession(s) 
it prefers to operate or the type(s) of other contract(s) it prefers to 
perform.
    (b) In reviewing the affidavit required by part 26, Sec.  26.83(j), 
you must ensure that the ACDBE firm meets the applicable size standard 
in Sec.  23.33.
    (c) For purposes of this part, the term prime contractor in part 26, 
Sec.  26.87(i) includes a firm holding a prime contract with an airport 
concessionaire to provide goods or services to the concessionaire or a 
firm holding a prime concession agreement with a recipient.
    (d) With respect to firms owned by Alaska Native Corporations 
(ANCs), the provisions of part 26, Sec.  26.73(i) do not apply under 
this part. The eligibility of ANC-owned firms for purposes of this part 
is governed by Sec.  26.73(h).
    (e) When you remove a concessionaire's eligibility after the 
concessionaire has entered a concession agreement, because the firm 
exceeded the small business size standard or because an owner has 
exceeded the personal net worth standard, and the firm in all other 
respects remains an eligible DBE, you may continue to count the 
concessionaire's participation toward DBE goals during the remainder of 
the current concession agreement. However, you must not count the 
concessionaire's participation toward DBE goals beyond the termination 
date for the concession agreement in effect at the time of the 
decertification (e.g., in

[[Page 178]]

a case where the agreement is renewed or extended, or an option for 
continued participation beyond the current term of the agreement is 
exercised).
    (f) When UCPs are established in a state (see part 26, Sec.  26.81), 
the UCP, rather than individual recipients, certifies firms for the 
ACDBE concession program.
    (g) You must use the Uniform Application Form found in appendix F to 
part 26. However, you must instruct applicants to take the following 
additional steps:
    (1) In the space available in section 2(B)(7) of the form, the 
applicant must state that it is applying for certification as an ACDBE.
    (2) With respect to section 4(C) of the form, the applicant must 
provide information on an attached page concerning the address/location, 
ownership/lease status, current value of property or lease, and fees/
lease payments paid to the airport.
    (3) The applicant need not complete section 4(I) and (J). However, 
the applicant must provide information on an attached page concerning 
any other airport concession businesses the applicant firm or any 
affiliate owns and/or operates, including name, location, type of 
concession, and start date of concession.
    (h) Car rental companies and private terminal owners or lessees are 
not authorized to certify firms as ACDBEs. As a car rental company or 
private terminal owner or lessee, you must obtain ACDBE participation 
from firms which a recipient or UCPs have certified as ACDBEs.
    (i) You must use the certification standards of this part to 
determine the ACDBE eligibility of firms that provide goods and services 
to concessionaires.



            Subpart D_Goals, Good Faith Efforts, and Counting



Sec.  23.41  What is the basic overall goal requirement for recipients?

    (a) If you are a recipient who must implement an ACDBE program, you 
must, except as provided in paragraph (b) of this section, establish two 
separate overall ACDBE goals. The first is for car rentals; the second 
is for concessions other than car rentals.
    (b) If your annual car rental concession revenues, averaged over the 
three-years preceding the date on which you are required to submit 
overall goals, do not exceed $200,000, you are not required to submit a 
car rental overall goal. If your annual revenues for concessions other 
than car rentals, averaged over the three years preceding the date on 
which you are required to submit overall goals, do not exceed $200,000, 
you are not required to submit a non-car rental overall goal.
    (c) Each overall goal must cover a three-year period. You must 
review your goals annually to make sure they continue to fit your 
circumstances appropriately. You must report to the FAA any significant 
adjustments that you make to your goal in the time before your next 
scheduled submission.
    (d) Your goals established under this part must provide for 
participation by all certified ACDBEs and may not be subdivided into 
group-specific goals.
    (e) If you fail to establish and implement goals as provided in this 
section, you are not in compliance with this part. If you establish and 
implement goals in a way different from that provided in this part, you 
are not in compliance with this part. If you fail to comply with this 
requirement, you are not eligible to receive FAA financial assistance.



Sec.  23.43  What are the consultation requirements in the development of recipients' overall goals?

    (a) As a recipient, you must consult with stakeholders before 
submitting your overall goals to FAA.
    (b) Stakeholders with whom you must consult include, but are not 
limited to, minority and women's business groups, community 
organizations, trade associations representing concessionaires currently 
located at the airport, as well as existing concessionaires themselves, 
and other officials or organizations which could be expected to have 
information concerning the availability of disadvantaged businesses, the 
effects of discrimination on opportunities for ACDBEs, and the 
recipient's efforts to increase participation of ACDBEs.

[[Page 179]]



Sec.  23.45  What are the requirements for submitting overall goal information to the FAA?

    (a) You must submit your overall goals to the appropriate FAA 
Regional Civil Rights Office for approval. Your first set of overall 
goals meeting the requirements of this subpart are due on the following 
schedule:
    (1) If you are a large or medium hub primary airport on April 21, 
2005, by January 1, 2006. You must make your next submissions by October 
1, 2008.
    (2) If you are a small hub primary airport on April 21, 2005, by 
October 1, 2006.
    (3) If you are a nonhub primary airport on April 21, 2005, by 
October 1, 2007.
    (b) You must then submit new goals every three years after the date 
that applies to you.
    (c) Timely submission and FAA approval of your overall goals is a 
condition of eligibility for FAA financial assistance.
    (d) In the time before you make your first submission under 
paragraph (a) of this section, you must continue to use the overall 
goals that have been approved by the FAA before the effective date of 
this part.
    (e) Your overall goal submission must include a description of the 
method used to calculate your goals and the data you relied on. You must 
``show your work'' to enable the FAA to understand how you concluded 
your goals were appropriate. This means that you must provide to the FAA 
the data, calculations, assumptions, and reasoning used in establishing 
your goals.
    (f) Your submission must include your projection of the portions of 
your overall goals you propose to meet through use of race-neutral and 
race-conscious means, respectively, and the basis for making this 
projection (see Sec.  23.51(d)(5))
    (g) FAA may approve or disapprove the way you calculated your goal, 
including your race-neutral/race-conscious ``split,'' as part of its 
review of your plan or goal submission. Except as provided in paragraph 
(h) of this section, the FAA does not approve or disapprove the goal 
itself (i.e., the number).
    (h) If the FAA determines that your goals have not been correctly 
calculated or the justification is inadequate, the FAA may, after 
consulting with you, adjust your overall goal or race-conscious/race-
neutral ``split.'' The adjusted goal represents the FAA's determination 
of an appropriate overall goal for ACDBE participation in the 
recipient's concession program, based on relevant data and analysis. The 
adjusted goal is binding on you.
    (i) If a new concession opportunity, the estimated average annual 
gross revenues of which are anticipated to be $200,000 or greater, 
arises at a time that falls between normal submission dates for overall 
goals, you must submit an appropriate adjustment to your overall goal to 
the FAA for approval no later than 90 days before issuing the 
solicitation for the new concession opportunity.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.47  What is the base for a recipient's goal for concessions other than car rentals?

    (a) As a recipient, the base for your goal includes the total gross 
receipts of concessions, except as otherwise provided in this section.
    (b) This base does not include the gross receipts of car rental 
operations.
    (c) The dollar amount of a management contract or subcontract with a 
non-ACDBE and the gross receipts of business activities to which a 
management or subcontract with a non-ACDBE pertains are not added to 
this base.
    (d) This base does not include any portion of a firm's estimated 
gross receipts that will not be generated from a concession.

    Example to paragraph (d): A firm operates a restaurant in the 
airport terminal which serves the traveling public and under the same 
lease agreement, provides in-flight catering service to air carriers. 
The projected gross receipts from the restaurant are included in the 
overall goal calculation, while the gross receipts to be earned by the 
in-flight catering services are not.

[[Page 180]]



Sec.  23.49  What is the base for a recipient's goal for car rentals?

    Except in the case where you use the alternative goal approach of 
Sec.  23.51(c)(5)(ii), the base for your goal is the total gross 
receipts of car rental operations at your airport. You do not include 
gross receipts of other concessions in this base.



Sec.  23.51  How are a recipient's overall goals expressed and calculated?

    (a) Your objective in setting a goal is to estimate the percentage 
of the base calculated under Sec. Sec.  23.47-23.49 that would be 
performed by ACDBEs in the absence of discrimination and its effects.
    (1) This percentage is the estimated ACDBE participation that would 
occur if there were a ``level playing field'' for firms to work as 
concessionaires for your airport.
    (2) In conducting this goal setting process, you are determining the 
extent, if any, to which the firms in your market area have suffered 
discrimination or its effects in connection with concession 
opportunities or related business opportunities.
    (3) You must complete the goal-setting process separately for each 
of the two overall goals identified in Sec.  23.41 of this part.
    (b)(1) Each overall concessions goal must be based on demonstrable 
evidence of the availability of ready, willing and able ACDBEs relative 
to all businesses ready, willing and able to participate in your ACDBE 
program (hereafter, the ``relative availability of ACDBEs'').
    (2) You cannot simply rely on the 10 percent national aspirational 
goal, your previous overall goal, or past ACDBE participation rates in 
your program without reference to the relative availability of ACDBEs in 
your market.
    (3) Your market area is defined by the geographical area in which 
the substantial majority of firms which seek to do concessions business 
with the airport are located and the geographical area in which the 
firms which receive the substantial majority of concessions-related 
revenues are located. Your market area may be different for different 
types of concessions.
    (c) Step 1. You must begin your goal setting process by determining 
a base figure for the relative availability of ACDBEs. The following are 
examples of approaches that you may take toward determining a base 
figure. These examples are provided as a starting point for your goal 
setting process. Any percentage figure derived from one of these 
examples should be considered a basis from which you begin when 
examining the evidence available to you. These examples are not intended 
as an exhaustive list. Other methods or combinations of methods to 
determine a base figure may be used, subject to approval by the FAA.
    (1) Use DBE Directories and Census Bureau Data. Determine the number 
of ready, willing and able ACDBEs in your market area from your ACDBE 
directory. Using the Census Bureau's County Business Pattern (CBP) data 
base, determine the number of all ready, willing and able businesses 
available in your market area that perform work in the same NAICS codes. 
(Information about the CBP data base may be obtained from the Census 
Bureau at their Web site, http://www.census.gov/epcd/cbp/view/
cbpview.html.) Divide the number of ACDBEs by the number of all 
businesses to derive a base figure for the relative availability of 
ACDBEs in your market area.
    (2) Use an Active Participants List. Determine the number of ACDBEs 
that have participated or attempted to participate in your airport 
concessions program in previous years. Determine the number of all 
businesses that have participated or attempted to participate in your 
airport concession program in previous years. Divide the number of 
ACDBEs who have participated or attempted to participate by the number 
for all businesses to derive a base figure for the relative availability 
of ACDBEs in your market area.
    (3) Use data from a disparity study. Use a percentage figure derived 
from data in a valid, applicable disparity study.
    (4) Use the goal of another recipient. If another airport or other 
DOT recipient in the same, or substantially similar,

[[Page 181]]

market has set an overall goal in compliance with this rule, you may use 
that goal as a base figure for your goal.
    (5) Alternative methods. (i) You may use other methods to determine 
a base figure for your overall goal. Any methodology you choose must be 
based on demonstrable evidence of local market conditions and be 
designed to ultimately attain a goal that is rationally related to the 
relative availability of ACDBEs in your market area.
    (ii) In the case of a car rental goal, where it appears that all or 
most of the goal is likely to be met through the purchases by car rental 
companies of vehicles or other goods or services from ACDBEs, one 
permissible alternative is to structure the goal entirely in terms of 
purchases of goods and services. In this case, you would calculate your 
car rental overall goal by dividing the estimated dollar value of such 
purchases from ACDBEs by the total estimated dollar value of all 
purchases to be made by car rental companies.
    (d) Step 2. Once you have calculated a base figure, you must examine 
all relevant evidence reasonably available in your jurisdiction to 
determine what adjustment, if any, is needed to the base figure in order 
to arrive at your overall goal.
    (1) There are many types of evidence that must be considered when 
adjusting the base figure. These include, but are not limited to:
    (i) The current capacity of ACDBEs to perform work in your 
concessions program, as measured by the volume of work ACDBEs have 
performed in recent years; and
    (ii) Evidence from disparity studies conducted anywhere within your 
jurisdiction, to the extent it is not already accounted for in your base 
figure.
    (2) If your base figure is the goal of another recipient, you must 
adjust it for differences in your market area and your concessions 
program.
    (3) If available, you must consider evidence from related fields 
that affect the opportunities for ACDBEs to form, grow and compete. 
These include, but are not limited to:
    (i) Statistical disparities in the ability of ACDBEs to get the 
financing, bonding and insurance required to participate in your 
program;
    (ii) Data on employment, self-employment, education, training and 
union apprenticeship programs, to the extent you can relate it to the 
opportunities for ACDBEs to perform in your program.
    (4) If you attempt to make an adjustment to your base figure to 
account for the continuing effects of past discrimination, or the 
effects of an ongoing ACDBE program, the adjustment must be based on 
demonstrable evidence that is logically and directly related to the 
effect for which the adjustment is sought.
    (5) Among the information you submit with your overall goal (see 
23.45(e)), you must include description of the methodology you used to 
establish the goal, including your base figure and the evidence with 
which it was calculated, as well as the adjustments you made to the base 
figure and the evidence relied on for the adjustments. You should also 
include a summary listing of the relevant available evidence in your 
jurisdiction and an explanation of how you used that evidence to adjust 
your base figure. You must also include your projection of the portions 
of the overall goal you expect to meet through race-neutral and race-
conscious measures, respectively (see Sec. Sec.  26.51(c)).
    (e) You are not required to obtain prior FAA concurrence with your 
overall goal (i.e., with the number itself). However, if the FAA's 
review suggests that your overall goal has not been correctly 
calculated, or that your method for calculating goals is inadequate, the 
FAA may, after consulting with you, adjust your overall goal or require 
that you do so. The adjusted overall goal is binding on you.
    (f) If you need additional time to collect data or take other steps 
to develop an approach to setting overall goals, you may request the 
approval of the FAA Administrator for an interim goal and/or goal-
setting mechanism. Such a mechanism must:
    (1) Reflect the relative availability of ACDBEs in your local market 
area to the maximum extent feasible given the data available to you; and
    (2) Avoid imposing undue burdens on non-ACDBEs.

[[Page 182]]



Sec.  23.53  How do car rental companies count ACDBE participation toward their goals?

    (a) As a car rental company, you may, in meeting the goal the 
airport has set for you, include purchases or leases of vehicles from 
any vendor that is a certified ACDBE.
    (b) As a car rental company, if you choose to meet the goal the 
airport has set for you by including purchases or leases of vehicles 
from an ACDBE vendor, you must also submit to the recipient 
documentation of the good faith efforts you have made to obtain ACDBE 
participation from other ACDBE providers of goods and services.
    (c) While this part does not require you to obtain ACDBE 
participation through direct ownership arrangements, you may count such 
participation toward the goal the airport has set for you.
    (d) The following special rules apply to counting participation 
related to car rental operations:
    (1) Count the entire amount of the cost charged by an ACDBE for 
repairing vehicles, provided that it is reasonable and not excessive as 
compared with fees customarily allowed for similar services.
    (2) Count the entire amount of the fee or commission charged by a 
ACDBE to manage a car rental concession under an agreement with the 
concessionaire toward ACDBE goals, provided that it is reasonable and 
not excessive as compared with fees customarily allowed for similar 
services.
    (3) Do not count any portion of a fee paid by a manufacturer to a 
car dealership for reimbursement of work performed under the 
manufacturer's warranty.
    (e) For other goods and services, count participation toward ACDBE 
goals as provided in part 26, Sec.  26.55 and Sec.  23.55 of this part. 
In the event of any conflict between these two sections, Sec.  23.55 
controls.
    (f) If you have a national or regional contract, count a pro-rated 
share of the amount of that contract toward the goals of each airport 
covered by the contract. Use the proportion of your applicable gross 
receipts as the basis for making this pro-rated assignment of ACDBE 
participation.

    Example to paragraph (f): Car Rental Company X signs a regional 
contract with an ACDBE car dealer to supply cars to all five airports in 
a state. The five airports each account for 20 percent of X's gross 
receipts in the state. Twenty percent of the value of the cars purchased 
through the ACDBE car dealer would count toward the goal of each 
airport.



Sec.  23.55  How do recipients count ACDBE participation toward goals for items other than car rentals?

    (a) You count only ACDBE participation that results from a 
commercially useful function. For purposes of this part, the term 
commercially useful function has the same meaning as in part 26, Sec.  
26.55(c), except that the requirements of Sec.  26.55(c)(3) do not apply 
to concessions.
    (b) Count the total dollar value of gross receipts an ACDBE earns 
under a concession agreement and the total dollar value of a management 
contract or subcontract with an ACDBE toward the goal. However, if the 
ACDBE enters into a subconcession agreement or subcontract with a non-
ACDBE, do not count any of the gross receipts earned by the non-ACDBE.
    (c) When an ACDBE performs as a subconcessionaire or subcontractor 
for a non-ACDBE, count only the portion of the gross receipts earned by 
the ACDBE under its subagreement.
    (d) When an ACDBE performs as a participant in a joint venture, 
count a portion of the gross receipts equal to the distinct, clearly 
defined portion of the work of the concession that the ACDBE performs 
with its own forces toward ACDBE goals.
    (e) Count the entire amount of fees or commissions charged by an 
ACDBE firm for a bona fide service, provided that, as the recipient, you 
determine this amount to be reasonable and not excessive as compared 
with fees customarily allowed for similar services. Such services may 
include, but are not limited to, professional, technical, consultant, 
legal, security systems, advertising, building cleaning and maintenance, 
computer programming, or managerial.
    (f) Count 100 percent of the cost of goods obtained from an ACDBE 
manufacturer. For purposes of this part, the

[[Page 183]]

term manufacturer has the same meaning as in part 26, Sec.  
26.55(e)(1)(ii).
    (g) Count 100 percent of the cost of goods purchased or leased from 
a ACDBE regular dealer. For purposes of this part, the term ``regular 
dealer'' has the same meaning as in part 26, Sec.  26.55(e)(2)(ii).
    (h) Count credit toward ACDBE goals for goods purchased from an 
ACDBE which is neither a manufacturer nor a regular dealer as follows:
    (1) Count the entire amount of fees or commissions charged for 
assistance in the procurement of the goods, provided that this amount is 
reasonable and not excessive as compared with fees customarily allowed 
for similar services. Do not count any portion of the cost of the goods 
themselves.
    (2) Count the entire amount of fees or transportation charges for 
the delivery of goods required for a concession, provided that this 
amount is reasonable and not excessive as compared with fees customarily 
allowed for similar services. Do not count any portion of the cost of 
goods themselves.
    (i) If a firm has not been certified as an ACDBE in accordance with 
the standards in this part, do not count the firm's participation toward 
ACDBE goals.
    (j) Do not count the work performed or gross receipts earned by a 
firm after its eligibility has been removed toward ACDBE goals. However, 
if an ACDBE firm certified on April 21, 2005 is decertified because one 
or more of its disadvantaged owners do not meet the personal net worth 
criterion or the firm exceeds business size standards of this part 
during the performance of a contract or other agreement, the firm's 
participation may continue to be counted toward ACDBE goals for the 
remainder of the term of the contract or other agreement (but not 
extensions or renewals of such contracts or agreements).
    (k) Do not count costs incurred in connection with the renovation, 
repair, or construction of a concession facility (sometimes referred to 
as the ``build-out'').
    (l) Do not count the ACDBE participation of car rental companies 
toward your ACDBE achievements toward this goal.



Sec.  23.57  What happens if a recipient falls short of meeting its overall goals?

    (a) You cannot be penalized, or treated by the Department as being 
in noncompliance with this part, simply because your ACDBE participation 
falls short of your overall goals. You can be penalized or treated as 
being in noncompliance only if you have failed to administer your ACDBE 
program in good faith.
    (b) If the awards and commitments shown on your Uniform Report of 
ACDBE Participation (found in Appendix A to this Part) at the end of any 
fiscal year are less than the overall goal applicable to that fiscal 
year, you must do the following in order to be regarded by the 
Department as implementing your ACDBE program in good faith:
    (1) Analyze in detail the reasons for the difference between the 
overall goal and your awards and commitments in that fiscal year;
    (2) Establish specific steps and milestones to correct the problems 
you have identified in your analysis and to enable you to meet fully 
your goal for the new fiscal year;
    (3) (i) If you are a CORE 30 airport or other airport designated by 
the FAA, you must submit, within 90 days of the end of the fiscal year, 
the analysis and corrective actions developed under paragraphs (b)(1) 
and (2) of this section to the FAA for approval. If the FAA approves the 
report, you will be regarded as complying with the requirements of this 
section for the remainder of the fiscal year.
    (ii) As an airport not meeting the criteria of paragraph (b)(3)(i) 
of this section, you must retain analysis and corrective actions in your 
records for three years and make it available to the FAA, on request, 
for their review.
    (4) The FAA may impose conditions on the recipient as part of its 
approval of the recipient's analysis and corrective actions including, 
but not limited to, modifications to your overall goal methodology, 
changes in your race-conscious/race-neutral split, or the introduction 
of additional race-neutral or race-conscious measures.
    (5) You may be regarded as being in noncompliance with this part, 
and

[[Page 184]]

therefore subject to the remedies in Sec.  23.11 of this part and other 
applicable regulations, for failing to implement your ACDBE program in 
good faith if any of the following things occur:
    (i) You do not submit your analysis and corrective actions to FAA in 
a timely manner as required under paragraph (b)(3) of this section;
    (ii) FAA disapproves your analysis or corrective actions; or
    (iii) You do not fully implement:
    (A) The corrective actions to which you have committed, or
    (B) Conditions that FAA has imposed following review of your 
analysis and corrective actions.
    (c) If information coming to the attention of FAA demonstrates that 
current trends make it unlikely that you, as an airport, will achieve 
ACDBE awards and commitments that would be necessary to allow you to 
meet your overall goal at the end of the fiscal year, FAA may require 
you to make further good faith efforts, such as modifying your race-
conscious/race-neutral split or introducing additional race-neutral or 
race-conscious measures for the remainder of the fiscal year.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.59  What is the role of the statutory 10 percent goal in the ACDBE program?

    (a) The statute authorizing the ACDBE program provides that, except 
to the extent the Secretary determines otherwise, not less than 10 
percent of concession businesses are to be ACDBEs.
    (b) This 10 percent goal is an aspirational goal at the national 
level, which the Department uses as a tool in evaluating and monitoring 
DBEs' opportunities to participate in airport concessions.
    (c) The national 10 percent aspirational goal does not authorize or 
require recipients to set overall or concession-specific goals at the 10 
percent level, or any other particular level, or to take any special 
administrative steps if their goals are above or below 10 percent.



Sec.  23.61  Can recipients use quotas or set-asides as part of their ACDBE programs?

    You must not use quotas or set-asides for ACDBE participation in 
your program.



                       Subpart E_Other Provisions



Sec.  23.71  Does a recipient have to change existing concession agreements?

    Nothing in this part requires you to modify or abrogate an existing 
concession agreement (one executed before April 21, 2005) during its 
term. When an extension or option to renew such an agreement is 
exercised, or when a material amendment is made, you must assess 
potential for ACDBE participation and may, if permitted by the 
agreement, use any means authorized by this part to obtain a modified 
amount of ACDBE participation in the renewed or amended agreement.



Sec.  23.73  What requirements apply to privately-owned or leased terminal buildings?

    (a) If you are a recipient who is required to implement an ACDBE 
program on whose airport there is a privately-owned or leased terminal 
building that has concessions, or any portion of such a building, this 
section applies to you.
    (b) You must pass through the applicable requirements of this part 
to the private terminal owner or lessee via your agreement with the 
owner or lessee or by other means. You must ensure that the terminal 
owner or lessee complies with the requirements of this part.
    (c) If your airport is a primary airport, you must obtain from the 
terminal owner or lessee the goals and other elements of the ACDBE 
program required under this part. You must incorporate this information 
into your concession plan and submit it to the FAA in accordance with 
this part.
    (d) If the terminal building is at a non-primary commercial service 
airport or general aviation airport or reliever airport, you must ensure 
that the owner complies with the requirements in Sec.  23.21(e).

[[Page 185]]



Sec.  23.75  Can recipients enter into long-term, exclusive agreements with concessionaires?

    (a) Except as provided in paragraph (b) of this section, you must 
not enter into long-term, exclusive agreements for concessions. For 
purposes of this section, a long-term agreement is one having a term 
longer than five years.
    (b) You may enter into a long-term, exclusive concession agreement 
only under the following conditions:
    (1) Special local circumstances exist that make it important to 
enter such agreement, and
    (2) The responsible FAA regional office approves your plan for 
meeting the standards of paragraph (c) of this section.
    (c) In order to obtain FAA approval of a long-term-exclusive 
concession agreement, you must submit the following information to the 
FAA regional office:
    (1) A description of the special local circumstances that warrant a 
long-term, exclusive agreement.
    (2) A copy of the draft and final leasing and subleasing or other 
agreements. This long-term, exclusive agreement must provide that:
    (i) A number of ACDBEs that reasonably reflects their availability 
in your market area, in the absence of discrimination, to do the types 
of work required will participate as concessionaires throughout the term 
of the agreement and account for at a percentage of the estimated annual 
gross receipts equivalent to a level set in accordance with Sec. Sec.  
23.47 through 23.49 of this part.
    (ii) You will review the extent of ACDBE participation before the 
exercise of each renewal option to consider whether an increase or 
decrease in ACDBE participation is warranted.
    (iii) An ACDBE concessionaire that is unable to perform successfully 
will be replaced by another ACDBE concessionaire, if the remaining term 
of the agreement makes this feasible. In the event that such action is 
not feasible, you will require the concessionaire to make good faith 
efforts during the remaining term of the agreement to encourage ACDBEs 
to compete for the purchases and/or leases of goods and services to be 
made by the concessionaire.
    (3) Assurances that any ACDBE participant will be in an acceptable 
form, such as a sublease, joint venture, or partnership.
    (4) Documentation that ACDBE participants are properly certified.
    (5) A description of the type of business or businesses to be 
operated (e.g., location, storage and delivery space, ``back-of-the-
house facilities'' such as kitchens, window display space, advertising 
space, and other amenities that will increase the ACDBE's chance to 
succeed).
    (6) Information on the investment required on the part of the ACDBE 
and any unusual management or financial arrangements between the prime 
concessionaire and ACDBE.
    (7) Information on the estimated gross receipts and net profit to be 
earned by the ACDBE.



Sec.  23.77  Does this part preempt local requirements?

    (a) In the event that a State or local law, regulation, or policy 
differs from the requirements of this part, the recipient must, as a 
condition of remaining eligible to receive Federal financial assistance 
from the DOT, take such steps as may be necessary to comply with the 
requirements of this part.
    (b) You must clearly identify any State or local law, regulation, or 
policy pertaining to minority, women's, or disadvantaged business 
enterprise concerning airport concessions that adds to, goes beyond, or 
imposes more stringent requirements than the provisions of this part. 
FAA will determine whether such a law, regulation, or policy conflicts 
with this part, in which case the requirements of this part will govern.
    (c) If not deemed in conflict by the FAA, you must write and 
administer such a State or local law, policy, or regulation separately 
from the ACDBE program.
    (d) You must provide copies of any such provisions and the legal 
authority supporting them to the FAA with your ACDBE program submission. 
FAA will not approve an ACDBE program if there are such provisions that 
conflict with the provisions of this part.

[[Page 186]]

    (e) However, nothing in this part preempts any State or local law, 
regulation, or policy enacted by the governing body of a recipient, or 
the authority of any State or local government or recipient to adopt or 
enforce any law, regulation, or policy relating to ACDBEs, as long as 
the law, regulation, or policy does not conflict with this part.



Sec.  23.79  Does this part permit recipients to use local geographic preferences?

    No. As a recipient you must not use a local geographic preference. 
For purposes of this section, a local geographic preference is any 
requirement that gives an ACDBE located in one place (e.g., your local 
area) an advantage over ACDBEs from other places in obtaining business 
as, or with, a concession at your airport.



    Sec. Appendix A to Part 23--Uniform Report of ACDBE Participation

         Instructions for Uniform Report of ACDBE Participation

    1. Insert name of airport receiving FAA financial assistance and AIP 
number.
    2. Provide the name and contact information (phone, fax, e-mail) for 
the person FAA should contact with questions about the report.
    3a. Provide the annual reporting period to which the report pertains 
(e.g., October 2005-September 2006).
    3b. Provide the date on which the report is submitted to FAA.
    4. This block and blocks 5 and 6 concern non-car rental goals and 
participation only. In this block, provide the overall non-car rental 
percentage goal and the race-conscious (RC) and race-neutral (RN) 
components of it. The RC and RN percentages should add up to the overall 
percentage goal.
    5. For purposes of this block and blocks 6, 8, and 9, the 
participation categories listed at the left of the block are the 
following: ``Prime Concessions'' are concessions who have a direct 
relationship with the airport (e.g., a company who has a lease agreement 
directly with the airport to operate a concession). A ``subconcession'' 
is a firm that has a sublease or other agreement with a prime 
concessionaire, rather than with the airport itself, to operate a 
concession at the airport. A ``management contract'' is an agreement 
between the airport and a firm to manage a portion of the airport's 
facilities or operations (e.g., manage the parking facilities). ``Goods/
services'' refers to those goods and services purchased by the airport 
itself or by concessionaires and management contractors from certified 
DBEs.
    Block 5 concerns all non-car rental concession activity covered by 
49 CFR part 23 during the reporting period, both new or continuing.
    In Column A, enter the total concession gross revenues for 
concessionaires (prime and sub) and purchases of goods and services 
(ACDBE and non-ACDBE combined) at the airport. In Column B, enter the 
number of lease agreements, contracts, etc. in effect or taking place 
during the reporting period in each participation category for all 
concessionaires and purchases of goods and services (ACDBE and non-ACDBE 
combined).
    Because, by statute, non-ACDBE management contracts do not count as 
part of the base for ACDBE goals, the cells for total management 
contract participation and ACDBE participation as a percentage of total 
management contracting dollars are not intended to be filled in blocks 
5, 6, 8, and 9.
    In Column C, enter the total gross revenues in each participation 
category (ACDBEs) only. In Column D, enter the number of lease 
agreements, contracts, etc., in effect or entered into during the 
reporting period in each participation category for all concessionaires 
and purchases of goods and services (ACDBEs only).
    Columns E and F are subsets of Column C: break out the total gross 
revenues listed in Column C into the portions that are attributable to 
race-conscious and race-neutral measures, respectively. Column G is a 
percentage calculation. It answers the question, what percentage of the 
numbers in Column A is represented by the corresponding numbers in 
Column C?
    6. The numbers in this Block concern only new non-car rental 
concession opportunities that arose during the current reporting period. 
In other words, the information requested in Block 6 is a subset of that 
requested in Block 5. Otherwise, this Block is filled out in the same 
way as Block 5.
    7. Blocks 7-9 concern car rental goals and participation. In Block 
7, provide the overall car rental percentage goal and the race-conscious 
(RC) and race-neutral (RN) components of it. The RC and RN percentages 
should add up to the overall percentage goal.
    8. Block 8 is parallel to Block 5, except that it is for car 
rentals. The instructions for filling it out are the same as for Block 
5.
    9. Block 9 is parallel to Block 6, except that it is for car 
rentals. The information requested in Block 9 is a subset of that 
requested in Block 8. The instructions for filling it out are the same 
as for Block 6.
    10. Block 10 instructs recipients to bring forward the cumulative 
ACDBE participation figures from Blocks 5 and 8, breaking down these 
figures by race and gender categories. Participation by non-minority

[[Page 187]]

women-owned firms should be listed in the ``non-minority women'' column. 
Participation by firms owned by minority women should be listed in the 
appropriate minority group column. The ``other'' column should be used 
to reflect participation by individuals who are not a member of a 
presumptively disadvantaged group who have been found disadvantaged on a 
case-by-case basis.
    11. This block instructs recipients to attach five information items 
for each ACDBE firm participating in its program during the reporting 
period. If the firm's participation numbers are reflected in Blocks 5-6 
and/or 8-9, the requested information about that firm should be attached 
in response to this item.

                  Uniform Report of ACDBE Participation

    1. Name of Recipient and AIP Number:
    2. Contact Information:
    3a. Reporting Period:
    3b. Date of Report:
    4. Current Non-Car Rental ACDBE Goal: Race Conscious Goal ----% Race 
Neutral Goal ----% Overall Goal ----%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
         5. Non-car rental Cumulative ACDBE participation            dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........  ..........      XXXXXX
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
      6. Non-Car rental New ACDBE participation this period          dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........      XXXXXX  ...........
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    7. Current Car Rental ACDBE Goal: Race Conscious Goal ----% Race 
Neutral Goal ----% Overall Goal ----%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
           8. Car rental Cumulative ACDBE participation              dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
        9. Car rental New ACDBE participation this period            dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  C Asian-    D Asian-                 F Non-
  10. Cumulative ACDBE participation by race/gender      A Black     B Hispanic    Pacific     Indian     E Native    minority     G Other     H Totals
                                                        Americans    Americans    Americans   Americans   Americans     Women
--------------------------------------------------------------------------------------------------------------------------------------------------------
Car Rental...........................................
Non-Car Rental.......................................
    Totals...........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 188]]

    11. On an attachment, list the following information for each ACDBE 
firm participating in your program during the period of this report: (1) 
Firm name; (2) Type of business; (3) Beginning and expiration dates of 
agreement, including options to renew; (4) Dates that material 
amendments have been or will be made to agreement (if known); (5) 
Estimated gross receipts for the firm during this reporting period.



PART 24_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY-ASSISTED PROGRAMS--Table of Contents



                            Subpart A_General

Sec.
24.1 Purpose.
24.2 Definitions and acronyms.
24.3 No duplication of payments.
24.4 Assurances, monitoring and corrective action.
24.5 Manner of notices.
24.6 Administration of jointly-funded projects.
24.7 Federal Agency waiver of regulations.
24.8 Compliance with other laws and regulations.
24.9 Recordkeeping and reports.
24.10 Appeals.

                   Subpart B_Real Property Acquisition

24.101 Applicability of acquisition requirements.
24.102 Basic acquisition policies.
24.103 Criteria for appraisals.
24.104 Review of appraisals.
24.105 Acquisition of tenant-owned improvements.
24.106 Expenses incidental to transfer of title to the Agency.
24.107 Certain litigation expenses.
24.108 Donations.

                Subpart C_General Relocation Requirements

24.201 Purpose.
24.202 Applicability.
24.203 Relocation notices.
24.204 Availability of comparable replacement dwelling before 
          displacement.
24.205 Relocation planning, advisory services, and coordination.
24.206 Eviction for cause.
24.207 General requirements claims for relocation payments.
24.208 Aliens not lawfully present in the United States.
24.209 Relocation payments not considered as income.

           Subpart D_Payments for Moving and Related Expenses

24.301 Payment for actual reasonable moving and related expenses.
24.302 Fixed payment for moving expenses--residential moves.
24.303 Related nonresidential eligible expenses.
24.304 Reestablishment expenses--nonresidential moves.
24.305 Fixed payment for moving expenses--nonresidential moves.
24.306 Discretionary utility relocation payments.

                 Subpart E_Replacement Housing Payments

24.401 Replacement housing payment for 180-day homeowner-occupants.
24.402 Replacement housing payment for 90-day occupants.
24.403 Additional rules governing replacement housing payments.
24.404 Replacement housing of last resort.

                         Subpart F_Mobile Homes

24.501 Applicability.
24.502 Replacement housing payment for 180-day mobile homeowner 
          displaced from a mobile home, and/or from the acquired mobile 
          home site.
24.503 Replacement housing payment for 90-day mobile home occupants.

                         Subpart G_Certification

24.601 Purpose.
24.602 Certification application.
24.603 Monitoring and corrective action.

Appendix A to Part 24--Additional Information
Appendix B to Part 24--Statistical Report Form

    Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc).

    Source: 70 FR 611, Jan. 4, 2005, unless otherwise noted.



                            Subpart A_General



Sec.  24.1  Purpose.

    The purpose of this part is to promulgate rules to implement the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970, as amended (42 U.S.C. 4601 et seq.) (Uniform Act), in 
accordance with the following objectives:
    (a) To ensure that owners of real property to be acquired for 
Federal and federally-assisted projects are treated

[[Page 189]]

fairly and consistently, to encourage and expedite acquisition by 
agreements with such owners, to minimize litigation and relieve 
congestion in the courts, and to promote public confidence in Federal 
and federally-assisted land acquisition programs;
    (b) To ensure that persons displaced as a direct result of Federal 
or federally-assisted projects are treated fairly, consistently, and 
equitably so that such displaced persons will not suffer 
disproportionate injuries as a result of projects designed for the 
benefit of the public as a whole; and
    (c) To ensure that Agencies implement these regulations in a manner 
that is efficient and cost effective.



Sec.  24.2  Definitions and acronyms.

    (a) Definitions. Unless otherwise noted, the following terms used in 
this part shall be understood as defined in this section:
    (1) Agency. The term Agency means the Federal Agency, State, State 
Agency, or person that acquires real property or displaces a person.
    (i) Acquiring Agency. The term acquiring Agency means a State 
Agency, as defined in paragraph (a)(1)(iv) of this section, which has 
the authority to acquire property by eminent domain under State law, and 
a State Agency or person which does not have such authority.
    (ii) Displacing Agency. The term displacing Agency means any Federal 
Agency carrying out a program or project, and any State, State Agency, 
or person carrying out a program or project with Federal financial 
assistance, which causes a person to be a displaced person.
    (iii) Federal Agency. The term Federal Agency means any department, 
Agency, or instrumentality in the executive branch of the government, 
any wholly owned government corporation, the Architect of the Capitol, 
the Federal Reserve Banks and branches thereof, and any person who has 
the authority to acquire property by eminent domain under Federal law.
    (iv) State Agency. The term State Agency means any department, 
Agency or instrumentality of a State or of a political subdivision of a 
State, any department, Agency, or instrumentality of two or more States 
or of two or more political subdivisions of a State or States, and any 
person who has the authority to acquire property by eminent domain under 
State law.
    (2) Alien not lawfully present in the United States. The phrase 
``alien not lawfully present in the United States'' means an alien who 
is not ``lawfully present'' in the United States as defined in 8 CFR 
103.12 and includes:
    (i) An alien present in the United States who has not been admitted 
or paroled into the United States pursuant to the Immigration and 
Nationality Act (8 U.S.C. 1101 et seq.) and whose stay in the United 
States has not been authorized by the United States Attorney General; 
and,
    (ii) An alien who is present in the United States after the 
expiration of the period of stay authorized by the United States 
Attorney General or who otherwise violates the terms and conditions of 
admission, parole or authorization to stay in the United States.
    (3) Appraisal. The term appraisal means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion of defined value of an adequately described property as 
of a specific date, supported by the presentation and analysis of 
relevant market information.
    (4) Business. The term business means any lawful activity, except a 
farm operation, that is conducted:
    (i) Primarily for the purchase, sale, lease and/or rental of 
personal and/or real property, and/or for the manufacture, processing, 
and/or marketing of products, commodities, and/or any other personal 
property;
    (ii) Primarily for the sale of services to the public;
    (iii) Primarily for outdoor advertising display purposes, when the 
display must be moved as a result of the project; or
    (iv) By a nonprofit organization that has established its nonprofit 
status under applicable Federal or State law.
    (5) Citizen. The term citizen for purposes of this part includes 
both citizens of the United States and noncitizen nationals.

[[Page 190]]

    (6) Comparable replacement dwelling. The term comparable replacement 
dwelling means a dwelling which is:
    (i) Decent, safe and sanitary as described in paragraph 24.2(a)(8) 
of this section;
    (ii) Functionally equivalent to the displacement dwelling. The term 
functionally equivalent means that it performs the same function, and 
provides the same utility. While a comparable replacement dwelling need 
not possess every feature of the displacement dwelling, the principal 
features must be present. Generally, functional equivalency is an 
objective standard, reflecting the range of purposes for which the 
various physical features of a dwelling may be used. However, in 
determining whether a replacement dwelling is functionally equivalent to 
the displacement dwelling, the Agency may consider reasonable trade-offs 
for specific features when the replacement unit is equal to or better 
than the displacement dwelling (See appendix A, Sec.  24.2(a)(6));
    (iii) Adequate in size to accommodate the occupants;
    (iv) In an area not subject to unreasonable adverse environmental 
conditions;
    (v) In a location generally not less desirable than the location of 
the displaced person's dwelling with respect to public utilities and 
commercial and public facilities, and reasonably accessible to the 
person's place of employment;
    (vi) On a site that is typical in size for residential development 
with normal site improvements, including customary landscaping. The site 
need not include special improvements such as outbuildings, swimming 
pools, or greenhouses. (See also Sec.  24.403(a)(2));
    (vii) Currently available to the displaced person on the private 
market except as provided in paragraph (a)(6)(ix) of this section (See 
appendix A, Sec.  24.2(a)(6)(vii)); and
    (viii) Within the financial means of the displaced person:
    (A) A replacement dwelling purchased by a homeowner in occupancy at 
the displacement dwelling for at least 180 days prior to initiation of 
negotiations (180-day homeowner) is considered to be within the 
homeowner's financial means if the homeowner will receive the full price 
differential as described in Sec.  24.401(c), all increased mortgage 
interest costs as described at Sec.  24.401(d) and all incidental 
expenses as described at Sec.  24.401(e), plus any additional amount 
required to be paid under Sec.  24.404, Replacement housing of last 
resort.
    (B) A replacement dwelling rented by an eligible displaced person is 
considered to be within his or her financial means if, after receiving 
rental assistance under this part, the person's monthly rent and 
estimated average monthly utility costs for the replacement dwelling do 
not exceed the person's base monthly rental for the displacement 
dwelling as described at Sec.  24.402(b)(2).
    (C) For a displaced person who is not eligible to receive a 
replacement housing payment because of the person's failure to meet 
length-of-occupancy requirements, comparable replacement rental housing 
is considered to be within the person's financial means if an Agency 
pays that portion of the monthly housing costs of a replacement dwelling 
which exceeds the person's base monthly rent for the displacement 
dwelling as described in Sec.  24.402(b)(2). Such rental assistance must 
be paid under Sec.  24.404, Replacement housing of last resort.
    (ix) For a person receiving government housing assistance before 
displacement, a dwelling that may reflect similar government housing 
assistance. In such cases any requirements of the government housing 
assistance program relating to the size of the replacement dwelling 
shall apply. (See appendix A, Sec.  24.2(a)(6)(ix).)
    (7) Contribute materially. The term contribute materially means that 
during the 2 taxable years prior to the taxable year in which 
displacement occurs, or during such other period as the Agency 
determines to be more equitable, a business or farm operation:
    (i) Had average annual gross receipts of at least $5,000; or
    (ii) Had average annual net earnings of at least $1,000; or
    (iii) Contributed at least 33\1/3\ percent of the owner's or 
operator's average annual gross income from all sources.

[[Page 191]]

    (iv) If the application of the above criteria creates an inequity or 
hardship in any given case, the Agency may approve the use of other 
criteria as determined appropriate.
    (8) Decent, safe, and sanitary dwelling. The term decent, safe, and 
sanitary dwelling means a dwelling which meets local housing and 
occupancy codes. However, any of the following standards which are not 
met by the local code shall apply unless waived for good cause by the 
Federal Agency funding the project. The dwelling shall:
    (i) Be structurally sound, weather tight, and in good repair;
    (ii) Contain a safe electrical wiring system adequate for lighting 
and other devices;
    (iii) Contain a heating system capable of sustaining a healthful 
temperature (of approximately 70 degrees) for a displaced person, except 
in those areas where local climatic conditions do not require such a 
system;
    (iv) Be adequate in size with respect to the number of rooms and 
area of living space needed to accommodate the displaced person. The 
number of persons occupying each habitable room used for sleeping 
purposes shall not exceed that permitted by local housing codes or, in 
the absence of local codes, the policies of the displacing Agency. In 
addition, the displacing Agency shall follow the requirements for 
separate bedrooms for children of the opposite gender included in local 
housing codes or in the absence of local codes, the policies of such 
Agencies;
    (v) There shall be a separate, well lighted and ventilated bathroom 
that provides privacy to the user and contains a sink, bathtub or shower 
stall, and a toilet, all in good working order and properly connected to 
appropriate sources of water and to a sewage drainage system. In the 
case of a housekeeping dwelling, there shall be a kitchen area that 
contains a fully usable sink, properly connected to potable hot and cold 
water and to a sewage drainage system, and adequate space and utility 
service connections for a stove and refrigerator;
    (vi) Contains unobstructed egress to safe, open space at ground 
level; and
    (vii) For a displaced person with a disability, be free of any 
barriers which would preclude reasonable ingress, egress, or use of the 
dwelling by such displaced person. (See appendix A, Sec.  
24.2(a)(8)(vii).)
    (9) Displaced person. (i) General. The term displaced person means, 
except as provided in paragraph (a)(9)(ii) of this section, any person 
who moves from the real property or moves his or her personal property 
from the real property. (This includes a person who occupies the real 
property prior to its acquisition, but who does not meet the length of 
occupancy requirements of the Uniform Act as described at Sec.  
24.401(a) and Sec.  24.402(a)):
    (A) As a direct result of a written notice of intent to acquire (see 
Sec.  24.203(d)), the initiation of negotiations for, or the acquisition 
of, such real property in whole or in part for a project;
    (B) As a direct result of rehabilitation or demolition for a 
project; or
    (C) As a direct result of a written notice of intent to acquire, or 
the acquisition, rehabilitation or demolition of, in whole or in part, 
other real property on which the person conducts a business or farm 
operation, for a project. However, eligibility for such person under 
this paragraph applies only for purposes of obtaining relocation 
assistance advisory services under Sec.  24.205(c), and moving expenses 
under Sec.  24.301, Sec.  24.302 or Sec.  24.303.
    (ii) Persons not displaced. The following is a nonexclusive listing 
of persons who do not qualify as displaced persons under this part:
    (A) A person who moves before the initiation of negotiations (see 
Sec.  24.403(d)), unless the Agency determines that the person was 
displaced as a direct result of the program or project;
    (B) A person who initially enters into occupancy of the property 
after the date of its acquisition for the project;
    (C) A person who has occupied the property for the purpose of 
obtaining assistance under the Uniform Act;
    (D) A person who is not required to relocate permanently as a direct 
result of a project. Such determination shall be made by the Agency in 
accordance with any guidelines established by the Federal Agency funding 
the project (See appendix A, Sec.  24.2(a)(9)(ii)(D));

[[Page 192]]

    (E) An owner-occupant who moves as a result of an acquisition of 
real property as described in Sec. Sec.  24.101(a)(2) or 24.101(b)(1) or 
(2), or as a result of the rehabilitation or demolition of the real 
property. (However, the displacement of a tenant as a direct result of 
any acquisition, rehabilitation or demolition for a Federal or 
federally-assisted project is subject to this part.);
    (F) A person whom the Agency determines is not displaced as a direct 
result of a partial acquisition;
    (G) A person who, after receiving a notice of relocation eligibility 
(described at Sec.  24.203(b)), is notified in writing that he or she 
will not be displaced for a project. Such written notification shall not 
be issued unless the person has not moved and the Agency agrees to 
reimburse the person for any expenses incurred to satisfy any binding 
contractual relocation obligations entered into after the effective date 
of the notice of relocation eligibility;
    (H) An owner-occupant who conveys his or her property, as described 
in Sec. Sec.  24.101(a)(2) or 24.101(b)(1) or (2), after being informed 
in writing that if a mutually satisfactory agreement on terms of the 
conveyance cannot be reached, the Agency will not acquire the property. 
In such cases, however, any resulting displacement of a tenant is 
subject to the regulations in this part;
    (I) A person who retains the right of use and occupancy of the real 
property for life following its acquisition by the Agency;
    (J) An owner who retains the right of use and occupancy of the real 
property for a fixed term after its acquisition by the Department of the 
Interior under Pub. L. 93-477, Appropriations for National Park System, 
or Pub. L. 93-303, Land and Water Conservation Fund, except that such 
owner remains a displaced person for purposes of subpart D of this part;
    (K) A person who is determined to be in unlawful occupancy prior to 
or after the initiation of negotiations, or a person who has been 
evicted for cause, under applicable law, as provided for in Sec.  
24.206. However, advisory assistance may be provided to unlawful 
occupants at the option of the Agency in order to facilitate the 
project;
    (L) A person who is not lawfully present in the United States and 
who has been determined to be ineligible for relocation assistance in 
accordance with Sec.  24.208; or
    (M) Tenants required to move as a result of the sale of their 
dwelling to a person using downpayment assistance provided under the 
American Dream Downpayment Initiative (ADDI) authorized by section 102 
of the American Dream Downpayment Act (Pub. L. 108-186; codified at 42 
U.S.C. 12821).
    (10) Dwelling. The term dwelling means the place of permanent or 
customary and usual residence of a person, according to local custom or 
law, including a single family house; a single family unit in a two-
family, multi-family, or multi-purpose property; a unit of a condominium 
or cooperative housing project; a non-housekeeping unit; a mobile home; 
or any other residential unit.
    (11) Dwelling site. The term dwelling site means a land area that is 
typical in size for similar dwellings located in the same neighborhood 
or rural area. (See appendix A, Sec.  24.2(a)(11).)
    (12) Farm operation. The term farm operation means any activity 
conducted solely or primarily for the production of one or more 
agricultural products or commodities, including timber, for sale or home 
use, and customarily producing such products or commodities in 
sufficient quantity to be capable of contributing materially to the 
operator's support.
    (13) Federal financial assistance. The term Federal financial 
assistance means a grant, loan, or contribution provided by the United 
States, except any Federal guarantee or insurance and any interest 
reduction payment to an individual in connection with the purchase and 
occupancy of a residence by that individual.
    (14) Household income. The term household income means total gross 
income received for a 12 month period from all sources (earned and 
unearned) including, but not limited to wages, salary, child support, 
alimony, unemployment benefits, workers compensation, social security, 
or the net income from a business. It does not include income received 
or earned by dependent children and full time students under

[[Page 193]]

18 years of age. (See appendix A, Sec.  24.2(a)(14) for examples of 
exclusions to income.)
    (15) Initiation of negotiations. Unless a different action is 
specified in applicable Federal program regulations, the term initiation 
of negotiations means the following:
    (i) Whenever the displacement results from the acquisition of the 
real property by a Federal Agency or State Agency, the initiation of 
negotiations means the delivery of the initial written offer of just 
compensation by the Agency to the owner or the owner's representative to 
purchase the real property for the project. However, if the Federal 
Agency or State Agency issues a notice of its intent to acquire the real 
property, and a person moves after that notice, but before delivery of 
the initial written purchase offer, the initiation of negotiations means 
the actual move of the person from the property.
    (ii) Whenever the displacement is caused by rehabilitation, 
demolition or privately undertaken acquisition of the real property (and 
there is no related acquisition by a Federal Agency or a State Agency), 
the initiation of negotiations means the notice to the person that he or 
she will be displaced by the project or, if there is no notice, the 
actual move of the person from the property.
    (iii) In the case of a permanent relocation to protect the public 
health and welfare, under the Comprehensive Environmental Response 
Compensation and Liability Act of 1980 (Pub. L. 96-510, or Superfund) 
(CERCLA) the initiation of negotiations means the formal announcement of 
such relocation or the Federal or federally-coordinated health advisory 
where the Federal Government later decides to conduct a permanent 
relocation.
    (iv) In the case of permanent relocation of a tenant as a result of 
an acquisition of real property described in Sec.  24.101(b)(1) through 
(5), the initiation of negotiations means the actions described in Sec.  
24.2(a)(15)(i) and (ii), except that such initiation of negotiations 
does not become effective, for purposes of establishing eligibility for 
relocation assistance for such tenants under this part, until there is a 
written agreement between the Agency and the owner to purchase the real 
property. (See appendix A, Sec.  24.2(a)(15)(iv)).
    (16) Lead Agency. The term Lead Agency means the Department of 
Transportation acting through the Federal Highway Administration.
    (17) Mobile home. The term mobile home includes manufactured homes 
and recreational vehicles used as residences. (See appendix A, Sec.  
24.2(a)(17)).
    (18) Mortgage. The term mortgage means such classes of liens as are 
commonly given to secure advances on, or the unpaid purchase price of, 
real property, under the laws of the State in which the real property is 
located, together with the credit instruments, if any, secured thereby.
    (19) Nonprofit organization. The term nonprofit organization means 
an organization that is incorporated under the applicable laws of a 
State as a nonprofit organization, and exempt from paying Federal income 
taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).
    (20) Owner of a dwelling. The term owner of a dwelling means a 
person who is considered to have met the requirement to own a dwelling 
if the person purchases or holds any of the following interests in real 
property:
    (i) Fee title, a life estate, a land contract, a 99 year lease, or a 
lease including any options for extension with at least 50 years to run 
from the date of acquisition; or
    (ii) An interest in a cooperative housing project which includes the 
right to occupy a dwelling; or
    (iii) A contract to purchase any of the interests or estates 
described in Sec.  24.2(a)(1)(i) or (ii) of this section; or
    (iv) Any other interest, including a partial interest, which in the 
judgment of the Agency warrants consideration as ownership.
    (21) Person. The term person means any individual, family, 
partnership, corporation, or association.
    (22) Program or project. The phrase program or project means any 
activity or series of activities undertaken by a Federal Agency or with 
Federal financial assistance received or anticipated in any phase of an 
undertaking in accordance with the Federal funding Agency guidelines.

[[Page 194]]

    (23) Salvage value. The term salvage value means the probable sale 
price of an item offered for sale to knowledgeable buyers with the 
requirement that it be removed from the property at a buyer's expense 
(i.e., not eligible for relocation assistance). This includes items for 
re-use as well as items with components that can be re-used or recycled 
when there is no reasonable prospect for sale except on this basis.
    (24) Small business. A small business is a business having not more 
than 500 employees working at the site being acquired or displaced by a 
program or project, which site is the location of economic activity. 
Sites occupied solely by outdoor advertising signs, displays, or devices 
do not qualify as a business for purposes of Sec.  24.304.
    (25) State. Any of the several States of the United States or the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or a political subdivision of any of 
these jurisdictions.
    (26) Tenant. The term tenant means a person who has the temporary 
use and occupancy of real property owned by another.
    (27) Uneconomic remnant. The term uneconomic remnant means a parcel 
of real property in which the owner is left with an interest after the 
partial acquisition of the owner's property, and which the Agency has 
determined has little or no value or utility to the owner.
    (28) Uniform Act. The term Uniform Act means the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894; 42 U.S.C. 4601 et seq.), and amendments thereto.
    (29) Unlawful occupant. A person who occupies without property 
right, title or payment of rent or a person legally evicted, with no 
legal rights to occupy a property under State law. An Agency, at its 
discretion, may consider such person to be in lawful occupancy.
    (30) Utility costs. The term utility costs means expenses for 
electricity, gas, other heating and cooking fuels, water and sewer.
    (31) Utility facility. The term utility facility means any electric, 
gas, water, steam power, or materials transmission or distribution 
system; any transportation system; any communications system, including 
cable television; and any fixtures, equipment, or other property 
associated with the operation, maintenance, or repair of any such 
system. A utility facility may be publicly, privately, or cooperatively 
owned.
    (32) Utility relocation. The term utility relocation means the 
adjustment of a utility facility required by the program or project 
undertaken by the displacing Agency. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on a new location; moving, rearranging 
or changing the type of existing facilities; and taking any necessary 
safety and protective measures. It shall also mean constructing a 
replacement facility that has the functional equivalency of the existing 
facility and is necessary for the continued operation of the utility 
service, the project economy, or sequence of project construction.
    (33) Waiver valuation. The term waiver valuation means the valuation 
process used and the product produced when the Agency determines that an 
appraisal is not required, pursuant to Sec.  24.102(c)(2) appraisal 
waiver provisions.
    (b) Acronyms. The following acronyms are commonly used in the 
implementation of programs subject to this regulation:
    (1) BCIS. Bureau of Citizenship and Immigration Service.
    (2) FEMA. Federal Emergency Management Agency.
    (3) FHA. Federal Housing Administration.
    (4) FHWA. Federal Highway Administration.
    (5) FIRREA. Financial Institutions Reform, Recovery, and Enforcement 
Act of 1989.
    (6) HLR. Housing of last resort.
    (7) HUD. U.S. Department of Housing and Urban Development.
    (8) MIDP. Mortgage interest differential payment.
    (9) RHP. Replacement housing payment.
    (10) STURAA. Surface Transportation and Uniform Relocation Act 
Amendments of 1987.

[[Page 195]]

    (11) URA. Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970.
    (12) USDOT. U.S. Department of Transportation.
    (13) USPAP. Uniform Standards of Professional Appraisal Practice.



Sec.  24.3  No duplication of payments.

    No person shall receive any payment under this part if that person 
receives a payment under Federal, State, local law, or insurance 
proceeds which is determined by the Agency to have the same purpose and 
effect as such payment under this part. (See appendix A, Sec.  24.3).



Sec.  24.4  Assurances, monitoring and corrective action.

    (a) Assurances. (1) Before a Federal Agency may approve any grant 
to, or contract, or agreement with, a State Agency under which Federal 
financial assistance will be made available for a project which results 
in real property acquisition or displacement that is subject to the 
Uniform Act, the State Agency must provide appropriate assurances that 
it will comply with the Uniform Act and this part. A displacing Agency's 
assurances shall be in accordance with section 210 of the Uniform Act. 
An acquiring Agency's assurances shall be in accordance with section 305 
of the Uniform Act and must contain specific reference to any State law 
which the Agency believes provides an exception to Sec. Sec.  301 or 302 
of the Uniform Act. If, in the judgment of the Federal Agency, Uniform 
Act compliance will be served, a State Agency may provide these 
assurances at one time to cover all subsequent federally-assisted 
programs or projects. An Agency, which both acquires real property and 
displaces persons, may combine its section 210 and section 305 
assurances in one document.
    (2) If a Federal Agency or State Agency provides Federal financial 
assistance to a ``person'' causing displacement, such Federal or State 
Agency is responsible for ensuring compliance with the requirements of 
this part, notwithstanding the person's contractual obligation to the 
grantee to comply.
    (3) As an alternative to the assurance requirement described in 
paragraph (a)(1) of this section, a Federal Agency may provide Federal 
financial assistance to a State Agency after it has accepted a 
certification by such State Agency in accordance with the requirements 
in subpart G of this part.
    (b) Monitoring and corrective action. The Federal Agency will 
monitor compliance with this part, and the State Agency shall take 
whatever corrective action is necessary to comply with the Uniform Act 
and this part. The Federal Agency may also apply sanctions in accordance 
with applicable program regulations. (Also see Sec.  24.603, of this 
part).
    (c) Prevention of fraud, waste, and mismanagement. The Agency shall 
take appropriate measures to carry out this part in a manner that 
minimizes fraud, waste, and mismanagement.



Sec.  24.5  Manner of notices.

    Each notice which the Agency is required to provide to a property 
owner or occupant under this part, except the notice described at Sec.  
24.102(b), shall be personally served or sent by certified or registered 
first-class mail, return receipt requested, and documented in Agency 
files. Each notice shall be written in plain, understandable language. 
Persons who are unable to read and understand the notice must be 
provided with appropriate translation and counseling. Each notice shall 
indicate the name and telephone number of a person who may be contacted 
for answers to questions or other needed help.



Sec.  24.6  Administration of jointly-funded projects.

    Whenever two or more Federal Agencies provide financial assistance 
to an Agency or Agencies, other than a Federal Agency, to carry out 
functionally or geographically related activities, which will result in 
the acquisition of property or the displacement of a person, the Federal 
Agencies may by agreement designate one such Agency as the cognizant 
Federal Agency. In the unlikely event that agreement among the Agencies 
cannot be reached as to which Agency shall be the cognizant Federal 
Agency, then the Lead Agency shall designate one of such Agencies to 
assume the cognizant role.

[[Page 196]]

At a minimum, the agreement shall set forth the federally-assisted 
activities which are subject to its terms and cite any policies and 
procedures, in addition to this part, that are applicable to the 
activities under the agreement. Under the agreement, the cognizant 
Federal Agency shall assure that the project is in compliance with the 
provisions of the Uniform Act and this part. All federally-assisted 
activities under the agreement shall be deemed a project for the 
purposes of this part.



Sec.  24.7  Federal Agency waiver of regulations.

    The Federal Agency funding the project may waive any requirement in 
this part not required by law if it determines that the waiver does not 
reduce any assistance or protection provided to an owner or displaced 
person under this part. Any request for a waiver shall be justified on a 
case-by-case basis.



Sec.  24.8  Compliance with other laws and regulations.

    The implementation of this part must be in compliance with other 
applicable Federal laws and implementing regulations, including, but not 
limited to, the following:
    (a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 et 
seq.).
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et 
seq.), as amended.
    (d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).
    (e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 et 
seq.).
    (f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).
    (g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
    (h) Executive Order 11063--Equal Opportunity and Housing, as amended 
by Executive Order 12892.
    (i) Executive Order 11246--Equal Employment Opportunity, as amended.
    (j) Executive Order 11625--Minority Business Enterprise.
    (k) Executive Orders 11988--Floodplain Management, and 11990--
Protection of Wetlands.
    (l) Executive Order 12250--Leadership and Coordination of Non-
Discrimination Laws.
    (m) Executive Order 12630--Governmental Actions and Interference 
with Constitutionally Protected Property Rights.
    (n) Robert T. Stafford Disaster Relief and Emergency Assistance Act, 
as amended (42 U.S.C. 5121 et seq.).
    (o) Executive Order 12892--Leadership and Coordination of Fair 
Housing in Federal Programs: Affirmatively Furthering Fair Housing 
(January 17, 1994).



Sec.  24.9  Recordkeeping and reports.

    (a) Records. The Agency shall maintain adequate records of its 
acquisition and displacement activities in sufficient detail to 
demonstrate compliance with this part. These records shall be retained 
for at least 3 years after each owner of a property and each person 
displaced from the property receives the final payment to which he or 
she is entitled under this part, or in accordance with the applicable 
regulations of the Federal funding Agency, whichever is later.
    (b) Confidentiality of records. Records maintained by an Agency in 
accordance with this part are confidential regarding their use as public 
information, unless applicable law provides otherwise.
    (c) Reports. The Agency shall submit a report of its real property 
acquisition and displacement activities under this part if required by 
the Federal Agency funding the project. A report will not be required 
more frequently than every 3 years, or as the Uniform Act provides, 
unless the Federal funding Agency shows good cause. The report shall be 
prepared and submitted using the format contained in appendix B of this 
part.



Sec.  24.10  Appeals.

    (a) General. The Agency shall promptly review appeals in accordance 
with the requirements of applicable law and this part.
    (b) Actions which may be appealed. Any aggrieved person may file a 
written appeal with the Agency in any case in which the person believes 
that the Agency has failed to properly consider the person's application 
for assistance

[[Page 197]]

under this part. Such assistance may include, but is not limited to, the 
person's eligibility for, or the amount of, a payment required under 
Sec.  24.106 or Sec.  24.107, or a relocation payment required under 
this part. The Agency shall consider a written appeal regardless of 
form.
    (c) Time limit for initiating appeal. The Agency may set a 
reasonable time limit for a person to file an appeal. The time limit 
shall not be less than 60 days after the person receives written 
notification of the Agency's determination on the person's claim.
    (d) Right to representation. A person has a right to be represented 
by legal counsel or other representative in connection with his or her 
appeal, but solely at the person's own expense.
    (e) Review of files by person making appeal. The Agency shall permit 
a person to inspect and copy all materials pertinent to his or her 
appeal, except materials which are classified as confidential by the 
Agency. The Agency may, however, impose reasonable conditions on the 
person's right to inspect, consistent with applicable laws.
    (f) Scope of review of appeal. In deciding an appeal, the Agency 
shall consider all pertinent justification and other material submitted 
by the person, and all other available information that is needed to 
ensure a fair and full review of the appeal.
    (g) Determination and notification after appeal. Promptly after 
receipt of all information submitted by a person in support of an 
appeal, the Agency shall make a written determination on the appeal, 
including an explanation of the basis on which the decision was made, 
and furnish the person a copy. If the full relief requested is not 
granted, the Agency shall advise the person of his or her right to seek 
judicial review of the Agency decision.
    (h) Agency official to review appeal. The Agency official conducting 
the review of the appeal shall be either the head of the Agency or his 
or her authorized designee. However, the official shall not have been 
directly involved in the action appealed.



                   Subpart B_Real Property Acquisition



Sec.  24.101  Applicability of acquisition requirements.

    (a) Direct Federal program or project. (1) The requirements of this 
subpart apply to any acquisition of real property for a direct Federal 
program or project, except acquisition for a program or project that is 
undertaken by the Tennessee Valley Authority or the Rural Utilities 
Service. (See appendix A, Sec.  24.101(a).)
    (2) If a Federal Agency (except for the Tennessee Valley Authority 
or the Rural Utilities Service) will not acquire a property because 
negotiations fail to result in an agreement, the owner of the property 
shall be so informed in writing. Owners of such properties are not 
displaced persons, (see Sec. Sec.  24.2(a)(9)(ii)(E) or (H)), and as 
such, are not entitled to relocation assistance benefits. However, 
tenants on such properties may be eligible for relocation assistance 
benefits. (See Sec.  24.2(a)(9)).
    (b) Programs and projects receiving Federal financial assistance. 
The requirements of this subpart apply to any acquisition of real 
property for programs and projects where there is Federal financial 
assistance in any part of project costs except for the acquisitions 
described in paragraphs (b)(1) through (5) of this section. The 
relocation assistance provisions in this part are applicable to any 
tenants that must move as a result of an acquisition described in 
paragraphs (b)(1) through (5) of this section. Such tenants are 
considered displaced persons. (See Sec.  24.2(a)(9).)
    (1) The requirements of Subpart B do not apply to acquisitions that 
meet all of the following conditions in paragraphs (b)(1)(i) through 
(iv):
    (i) No specific site or property needs to be acquired, although the 
Agency may limit its search for alternative sites to a general 
geographic area. Where an Agency wishes to purchase more than one site 
within a general geographic area on this basis, all owners are to be 
treated similarly. (See appendix A, Sec.  24.101(b)(1)(i).)

[[Page 198]]

    (ii) The property to be acquired is not part of an intended, 
planned, or designated project area where all or substantially all of 
the property within the area is to be acquired within specific time 
limits.
    (iii) The Agency will not acquire the property if negotiations fail 
to result in an amicable agreement, and the owner is so informed in 
writing.
    (iv) The Agency will inform the owner in writing of what it believes 
to be the market value of the property. (See appendix A, Sec.  
24.101(b)(1)(iv) and (2)(ii).)
    (2) Acquisitions for programs or projects undertaken by an Agency or 
person that receives Federal financial assistance but does not have 
authority to acquire property by eminent domain, provided that such 
Agency or person shall:
    (i) Prior to making an offer for the property, clearly advise the 
owner that it is unable to acquire the property if negotiations fail to 
result in an agreement; and
    (ii) Inform the owner in writing of what it believes to be the 
market value of the property. (See appendix A, Sec.  24.101(b)(1)(iv) 
and (2)(ii).)
    (3) The acquisition of real property from a Federal Agency, State, 
or State Agency, if the Agency desiring to make the purchase does not 
have authority to acquire the property through condemnation.
    (4) The acquisition of real property by a cooperative from a person 
who, as a condition of membership in the cooperative, has agreed to 
provide without charge any real property that is needed by the 
cooperative.
    (5) Acquisition for a program or project that receives Federal 
financial assistance from the Tennessee Valley Authority or the Rural 
Utilities Service.
    (c) Less-than-full-fee interest in real property. (1) The provisions 
of this subpart apply when acquiring fee title subject to retention of a 
life estate or a life use; to acquisition by leasing where the lease 
term, including option(s) for extension, is 50 years or more; and to the 
acquisition of permanent and/or temporary easements necessary for the 
project. However, the Agency may apply these regulations to any less-
than-full-fee acquisition that, in its judgment, should be covered.
    (2) The provisions of this subpart do not apply to temporary 
easements or permits needed solely to perform work intended exclusively 
for the benefit of the property owner, which work may not be done if 
agreement cannot be reached.
    (d) Federally-assisted projects. For projects receiving Federal 
financial assistance, the provisions of Sec. Sec.  24.102, 24.103, 
24.104, and 24.105 apply to the greatest extent practicable under State 
law. (See Sec.  24.4(a).)



Sec.  24.102  Basic acquisition policies.

    (a) Expeditious acquisition. The Agency shall make every reasonable 
effort to acquire the real property expeditiously by negotiation.
    (b) Notice to owner. As soon as feasible, the Agency shall notify 
the owner in writing of the Agency's interest in acquiring the real 
property and the basic protections provided to the owner by law and this 
part. (See Sec.  24.203.)
    (c) Appraisal, waiver thereof, and invitation to owner. (1) Before 
the initiation of negotiations the real property to be acquired shall be 
appraised, except as provided in Sec.  24.102 (c)(2), and the owner, or 
the owner's designated representative, shall be given an opportunity to 
accompany the appraiser during the appraiser's inspection of the 
property.
    (2) An appraisal is not required if:
    (i) The owner is donating the property and releases the Agency from 
its obligation to appraise the property; or
    (ii) The Agency determines that an appraisal is unnecessary because 
the valuation problem is uncomplicated and the anticipated value of the 
proposed acquisition is estimated at $10,000 or less, based on a review 
of available data.
    (A) When an appraisal is determined to be unnecessary, the Agency 
shall prepare a waiver valuation.
    (B) The person performing the waiver valuation must have sufficient 
understanding of the local real estate market to be qualified to make 
the waiver valuation.
    (C) The Federal Agency funding the project may approve exceeding the

[[Page 199]]

$10,000 threshold, up to a maximum of $25,000, if the Agency acquiring 
the real property offers the property owner the option of having the 
Agency appraise the property. If the property owner elects to have the 
Agency appraise the property, the Agency shall obtain an appraisal and 
not use procedures described in this paragraph. (See appendix A, Sec.  
24.102(c)(2).)
    (d) Establishment and offer of just compensation. Before the 
initiation of negotiations, the Agency shall establish an amount which 
it believes is just compensation for the real property. The amount shall 
not be less than the approved appraisal of the fair market value of the 
property, taking into account the value of allowable damages or benefits 
to any remaining property. An Agency official must establish the amount 
believed to be just compensation. (See Sec.  24.104.) Promptly 
thereafter, the Agency shall make a written offer to the owner to 
acquire the property for the full amount believed to be just 
compensation. (See appendix A, Sec.  24.102(d).)
    (e) Summary statement. Along with the initial written purchase 
offer, the owner shall be given a written statement of the basis for the 
offer of just compensation, which shall include:
    (1) A statement of the amount offered as just compensation. In the 
case of a partial acquisition, the compensation for the real property to 
be acquired and the compensation for damages, if any, to the remaining 
real property shall be separately stated.
    (2) A description and location identification of the real property 
and the interest in the real property to be acquired.
    (3) An identification of the buildings, structures, and other 
improvements (including removable building equipment and trade fixtures) 
which are included as part of the offer of just compensation. Where 
appropriate, the statement shall identify any other separately held 
ownership interest in the property, e.g., a tenant-owned improvement, 
and indicate that such interest is not covered by this offer.
    (f) Basic negotiation procedures. The Agency shall make all 
reasonable efforts to contact the owner or the owner's representative 
and discuss its offer to purchase the property, including the basis for 
the offer of just compensation and explain its acquisition policies and 
procedures, including its payment of incidental expenses in accordance 
with Sec.  24.106. The owner shall be given reasonable opportunity to 
consider the offer and present material which the owner believes is 
relevant to determining the value of the property and to suggest 
modification in the proposed terms and conditions of the purchase. The 
Agency shall consider the owner's presentation. (See appendix A, Sec.  
24.102(f).)
    (g) Updating offer of just compensation. If the information 
presented by the owner, or a material change in the character or 
condition of the property, indicates the need for new appraisal 
information, or if a significant delay has occurred since the time of 
the appraisal(s) of the property, the Agency shall have the appraisal(s) 
updated or obtain a new appraisal(s). If the latest appraisal 
information indicates that a change in the purchase offer is warranted, 
the Agency shall promptly reestablish just compensation and offer that 
amount to the owner in writing.
    (h) Coercive action. The Agency shall not advance the time of 
condemnation, or defer negotiations or condemnation or the deposit of 
funds with the court, or take any other coercive action in order to 
induce an agreement on the price to be paid for the property.
    (i) Administrative settlement. The purchase price for the property 
may exceed the amount offered as just compensation when reasonable 
efforts to negotiate an agreement at that amount have failed and an 
authorized Agency official approves such administrative settlement as 
being reasonable, prudent, and in the public interest. When Federal 
funds pay for or participate in acquisition costs, a written 
justification shall be prepared, which states what available 
information, including trial risks, supports such a settlement. (See 
appendix A, Sec.  24.102(i).)
    (j) Payment before taking possession. Before requiring the owner to 
surrender possession of the real property, the Agency shall pay the 
agreed purchase price to the owner, or in the case of a condemnation, 
deposit with the court, for the benefit of the owner, an

[[Page 200]]

amount not less than the Agency's approved appraisal of the fair market 
value of such property, or the court award of compensation in the 
condemnation proceeding for the property. In exceptional circumstances, 
with the prior approval of the owner, the Agency may obtain a right-of-
entry for construction purposes before making payment available to an 
owner. (See appendix A, Sec.  24.102(j).)
    (k) Uneconomic remnant. If the acquisition of only a portion of a 
property would leave the owner with an uneconomic remnant, the Agency 
shall offer to acquire the uneconomic remnant along with the portion of 
the property needed for the project. (See Sec.  24.2(a)(27).)
    (l) Inverse condemnation. If the Agency intends to acquire any 
interest in real property by exercise of the power of eminent domain, it 
shall institute formal condemnation proceedings and not intentionally 
make it necessary for the owner to institute legal proceedings to prove 
the fact of the taking of the real property.
    (m) Fair rental. If the Agency permits a former owner or tenant to 
occupy the real property after acquisition for a short term, or a period 
subject to termination by the Agency on short notice, the rent shall not 
exceed the fair market rent for such occupancy. (See appendix A, Sec.  
24.102(m).)
    (n) Conflict of interest. (1) The appraiser, review appraiser or 
person performing the waiver valuation shall not have any interest, 
direct or indirect, in the real property being valued for the Agency.
    Compensation for making an appraisal or waiver valuation shall not 
be based on the amount of the valuation estimate.
    (2) No person shall attempt to unduly influence or coerce an 
appraiser, review appraiser, or waiver valuation preparer regarding any 
valuation or other aspect of an appraisal, review or waiver valuation. 
Persons functioning as negotiators may not supervise or formally 
evaluate the performance of any appraiser or review appraiser performing 
appraisal or appraisal review work, except that, for a program or 
project receiving Federal financial assistance, the Federal funding 
Agency may waive this requirement if it determines it would create a 
hardship for the Agency.
    (3) An appraiser, review appraiser, or waiver valuation preparer 
making an appraisal, appraisal review or waiver valuation may be 
authorized by the Agency to act as a negotiator for real property for 
which that person has made an appraisal, appraisal review or waiver 
valuation only if the offer to acquire the property is $10,000, or less. 
(See appendix A, Sec.  24.102(n).)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.103  Criteria for appraisals.

    (a) Appraisal requirements. This section sets forth the requirements 
for real property acquisition appraisals for Federal and federally-
assisted programs. Appraisals are to be prepared according to these 
requirements, which are intended to be consistent with the Uniform 
Standards of Professional Appraisal Practice (USPAP). \1\ (See appendix 
A, Sec.  24.103(a).) The Agency may have appraisal requirements that 
supplement these requirements, including, to the extent appropriate, the 
Uniform Appraisal Standards for Federal Land Acquisition (UASFLA). \2\
---------------------------------------------------------------------------

    \1\ Uniform Standards of Professional Appraisal Practice (USPAP). 
Published by The Appraisal Foundation, a nonprofit educational 
organization. Copies may be ordered from The Appraisal Foundation at the 
following URL: http://www.appraisalfoundation.org/htm/USPAP2004/toc.htm.
    \2\ The ``Uniform Appraisal Standards for Federal Land 
Acquisitions'' is published by the Interagency Land Acquisition 
Conference. It is a compendium of Federal eminent domain appraisal law, 
both case and statute, regulations and practices. It is available at 
http://www.usdoj.gov/enrd/land-ack/toc.htm or in soft cover format from 
the Appraisal Institute at http://www.appraisalinstitute.org/econom/
publications/Default.asp and select ``Legal/Regulatory'' or call 888-
570-4545.
---------------------------------------------------------------------------

    (1) The Agency acquiring real property has a legitimate role in 
contributing to the appraisal process, especially in developing the 
scope of work and defining the appraisal problem. The scope of work and 
development of an appraisal under these requirements depends on the 
complexity of the appraisal problem.

[[Page 201]]

    (2) The Agency has the responsibility to assure that the appraisals 
it obtains are relevant to its program needs, reflect established and 
commonly accepted Federal and federally-assisted program appraisal 
practice, and as a minimum, complies with the definition of appraisal in 
Sec.  24.2(a)(3) and the five following requirements: (See appendix A, 
Sec. Sec.  24.103 and 24.103(a).)
    (i) An adequate description of the physical characteristics of the 
property being appraised (and, in the case of a partial acquisition, an 
adequate description of the remaining property), including items 
identified as personal property, a statement of the known and observed 
encumbrances, if any, title information, location, zoning, present use, 
an analysis of highest and best use, and at least a 5-year sales history 
of the property. (See appendix A, Sec.  24.103(a)(1).)
    (ii) All relevant and reliable approaches to value consistent with 
established Federal and federally-assisted program appraisal practices. 
If the appraiser uses more than one approach, there shall be an analysis 
and reconciliation of approaches to value used that is sufficient to 
support the appraiser's opinion of value. (See appendix A, Sec.  
24.103(a).)
    (iii) A description of comparable sales, including a description of 
all relevant physical, legal, and economic factors such as parties to 
the transaction, source and method of financing, and verification by a 
party involved in the transaction.
    (iv) A statement of the value of the real property to be acquired 
and, for a partial acquisition, a statement of the value of the damages 
and benefits, if any, to the remaining real property, where appropriate.
    (v) The effective date of valuation, date of appraisal, signature, 
and certification of the appraiser.
    (b) Influence of the project on just compensation. The appraiser 
shall disregard any decrease or increase in the fair market value of the 
real property caused by the project for which the property is to be 
acquired, or by the likelihood that the property would be acquired for 
the project, other than that due to physical deterioration within the 
reasonable control of the owner. (See appendix A, Sec.  24.103(b).)
    (c) Owner retention of improvements. If the owner of a real property 
improvement is permitted to retain it for removal from the project site, 
the amount to be offered for the interest in the real property to be 
acquired shall be not less than the difference between the amount 
determined to be just compensation for the owner's entire interest in 
the real property and the salvage value (defined at Sec.  24.2(a)(24)) 
of the retained improvement.
    (d) Qualifications of appraisers and review appraisers. (1) The 
Agency shall establish criteria for determining the minimum 
qualifications and competency of appraisers and review appraisers. 
Qualifications shall be consistent with the scope of work for the 
assignment. The Agency shall review the experience, education, training, 
certification/licensing, designation(s) and other qualifications of 
appraisers, and review appraisers, and use only those determined by the 
Agency to be qualified. (See appendix A, Sec.  24.103(d)(1).)
    (2) If the Agency uses a contract (fee) appraiser to perform the 
appraisal, such appraiser shall be State licensed or certified in 
accordance with title XI of the Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3331 et seq.).

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.104  Review of appraisals.

    The Agency shall have an appraisal review process and, at a minimum:
    (a) A qualified review appraiser (see Sec.  24.103(d)(1) and 
appendix A, Sec.  24.104) shall examine the presentation and analysis of 
market information in all appraisals to assure that they meet the 
definition of appraisal found in 49 CFR 24.2(a)(3), appraisal 
requirements found in 49 CFR 24.103 and other applicable requirements, 
including, to the extent appropriate, the UASFLA, and support the 
appraiser's opinion of value. The level of review analysis depends on 
the complexity of the appraisal problem. As needed, the review appraiser 
shall, prior to acceptance, seek necessary

[[Page 202]]

corrections or revisions. The review appraiser shall identify each 
appraisal report as recommended (as the basis for the establishment of 
the amount believed to be just compensation), accepted (meets all 
requirements, but not selected as recommended or approved), or not 
accepted. If authorized by the Agency to do so, the staff review 
appraiser shall also approve the appraisal (as the basis for the 
establishment of the amount believed to be just compensation), and, if 
also authorized to do so, develop and report the amount believed to be 
just compensation. (See appendix A, Sec.  24.104(a).)
    (b) If the review appraiser is unable to recommend (or approve) an 
appraisal as an adequate basis for the establishment of the offer of 
just compensation, and it is determined by the acquiring Agency that it 
is not practical to obtain an additional appraisal, the review appraiser 
may, as part of the review, present and analyze market information in 
conformance with Sec.  24.103 to support a recommended (or approved) 
value. (See appendix A, Sec.  24.104(b).)
    (c) The review appraiser shall prepare a written report that 
identifies the appraisal reports reviewed and documents the findings and 
conclusions arrived at during the review of the appraisal(s). Any 
damages or benefits to any remaining property shall be identified in the 
review appraiser's report. The review appraiser shall also prepare a 
signed certification that states the parameters of the review. The 
certification shall state the approved value, and, if the review 
appraiser is authorized to do so, the amount believed to be just 
compensation for the acquisition. (See appendix A, Sec.  24.104(c).)



Sec.  24.105  Acquisition of tenant-owned improvements.

    (a) Acquisition of improvements. When acquiring any interest in real 
property, the Agency shall offer to acquire at least an equal interest 
in all buildings, structures, or other improvements located upon the 
real property to be acquired, which it requires to be removed or which 
it determines will be adversely affected by the use to which such real 
property will be put. This shall include any improvement of a tenant-
owner who has the right or obligation to remove the improvement at the 
expiration of the lease term.
    (b) Improvements considered to be real property. Any building, 
structure, or other improvement, which would be considered to be real 
property if owned by the owner of the real property on which it is 
located, shall be considered to be real property for purposes of this 
subpart.
    (c) Appraisal and Establishment of Just Compensation for a Tenant-
Owned Improvement. Just compensation for a tenant-owned improvement is 
the amount which the improvement contributes to the fair market value of 
the whole property, or its salvage value, whichever is greater. (Salvage 
value is defined at Sec.  24.2(a)(23).)
    (d) Special conditions for tenant-owned improvements. No payment 
shall be made to a tenant-owner for any real property improvement 
unless:
    (1) The tenant-owner, in consideration for the payment, assigns, 
transfers, and releases to the Agency all of the tenant-owner's right, 
title, and interest in the improvement;
    (2) The owner of the real property on which the improvement is 
located disclaims all interest in the improvement; and
    (3) The payment does not result in the duplication of any 
compensation otherwise authorized by law.
    (e) Alternative compensation. Nothing in this subpart shall be 
construed to deprive the tenant-owner of any right to reject payment 
under this subpart and to obtain payment for such property interests in 
accordance with other applicable law.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.106  Expenses incidental to transfer of title to the Agency.

    (a) The owner of the real property shall be reimbursed for all 
reasonable expenses the owner necessarily incurred for:
    (1) Recording fees, transfer taxes, documentary stamps, evidence of 
title, boundary surveys, legal descriptions of the real property, and 
similar expenses incidental to conveying the real property to the 
Agency. However, the Agency is not required to pay costs solely

[[Page 203]]

required to perfect the owner's title to the real property;
    (2) Penalty costs and other charges for prepayment of any 
preexisting recorded mortgage entered into in good faith encumbering the 
real property; and
    (3) The pro rata portion of any prepaid real property taxes which 
are allocable to the period after the Agency obtains title to the 
property or effective possession of it, whichever is earlier.
    (b) Whenever feasible, the Agency shall pay these costs directly to 
the billing agent so that the owner will not have to pay such costs and 
then seek reimbursement from the Agency.



Sec.  24.107  Certain litigation expenses.

    The owner of the real property shall be reimbursed for any 
reasonable expenses, including reasonable attorney, appraisal, and 
engineering fees, which the owner actually incurred because of a 
condemnation proceeding, if:
    (a) The final judgment of the court is that the Agency cannot 
acquire the real property by condemnation;
    (b) The condemnation proceeding is abandoned by the Agency other 
than under an agreed-upon settlement; or
    (c) The court having jurisdiction renders a judgment in favor of the 
owner in an inverse condemnation proceeding or the Agency effects a 
settlement of such proceeding.



Sec.  24.108  Donations.

    An owner whose real property is being acquired may, after being 
fully informed by the Agency of the right to receive just compensation 
for such property, donate such property or any part thereof, any 
interest therein, or any compensation paid therefore, to the Agency as 
such owner shall determine. The Agency is responsible for ensuring that 
an appraisal of the real property is obtained unless the owner releases 
the Agency from such obligation, except as provided in Sec.  
24.102(c)(2).



                Subpart C_General Relocation Requirements



Sec.  24.201  Purpose.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance in this part.



Sec.  24.202  Applicability.

    These requirements apply to the relocation of any displaced person 
as defined at Sec.  24.2(a)(9). Any person who qualifies as a displaced 
person must be fully informed of his or her rights and entitlements to 
relocation assistance and payments provided by the Uniform Act and this 
regulation. (See appendix A, Sec.  24.202.)



Sec.  24.203  Relocation notices.

    (a) General information notice. As soon as feasible, a person 
scheduled to be displaced shall be furnished with a general written 
description of the displacing Agency's relocation program which does at 
least the following:
    (1) Informs the person that he or she may be displaced for the 
project and generally describes the relocation payment(s) for which the 
person may be eligible, the basic conditions of eligibility, and the 
procedures for obtaining the payment(s);
    (2) Informs the displaced person that he or she will be given 
reasonable relocation advisory services, including referrals to 
replacement properties, help in filing payment claims, and other 
necessary assistance to help the displaced person successfully relocate;
    (3) Informs the displaced person that he or she will not be required 
to move without at least 90 days advance written notice (see paragraph 
(c) of this section), and informs any person to be displaced from a 
dwelling that he or she cannot be required to move permanently unless at 
least one comparable replacement dwelling has been made available;
    (4) Informs the displaced person that any person who is an alien not 
lawfully present in the United States is ineligible for relocation 
advisory services and relocation payments, unless such ineligibility 
would result in exceptional and extremely unusual hardship to a 
qualifying spouse, parent, or child, as defined in Sec.  24.208(h); and
    (5) Describes the displaced person's right to appeal the Agency's 
determination as to a person's application for assistance for which a 
person may be eligible under this part.

[[Page 204]]

    (b) Notice of relocation eligibility. Eligibility for relocation 
assistance shall begin on the date of a notice of intent to acquire 
(described in Sec.  24.203(d)), the initiation of negotiations (defined 
in Sec.  24.2(a)(15)), or actual acquisition, whichever occurs first. 
When this occurs, the Agency shall promptly notify all occupants in 
writing of their eligibility for applicable relocation assistance.
    (c) Ninety-day notice--(1) General. No lawful occupant shall be 
required to move unless he or she has received at least 90 days advance 
written notice of the earliest date by which he or she may be required 
to move.
    (2) Timing of notice. The displacing Agency may issue the notice 90 
days or earlier before it expects the person to be displaced.
    (3) Content of notice. The 90-day notice shall either state a 
specific date as the earliest date by which the occupant may be required 
to move, or state that the occupant will receive a further notice 
indicating, at least 30 days in advance, the specific date by which he 
or she must move. If the 90-day notice is issued before a comparable 
replacement dwelling is made available, the notice must state clearly 
that the occupant will not have to move earlier than 90 days after such 
a dwelling is made available. (See Sec.  24.204(a).)
    (4) Urgent need. In unusual circumstances, an occupant may be 
required to vacate the property on less than 90 days advance written 
notice if the displacing Agency determines that a 90-day notice is 
impracticable, such as when the person's continued occupancy of the 
property would constitute a substantial danger to health or safety. A 
copy of the Agency's determination shall be included in the applicable 
case file.
    (d) Notice of intent to acquire. A notice of intent to acquire is a 
displacing Agency's written communication that is provided to a person 
to be displaced, including those to be displaced by rehabilitation or 
demolition activities from property acquired prior to the commitment of 
Federal financial assistance to the activity, which clearly sets forth 
that the Agency intends to acquire the property. A notice of intent to 
acquire establishes eligibility for relocation assistance prior to the 
initiation of negotiations and/or prior to the commitment of Federal 
financial assistance. (See Sec.  24.2(a)(9)(i)(A).)



Sec.  24.204  Availability of comparable replacement dwelling before displacement.

    (a) General. No person to be displaced shall be required to move 
from his or her dwelling unless at least one comparable replacement 
dwelling (defined at Sec.  24.2 (a)(6)) has been made available to the 
person. When possible, three or more comparable replacement dwellings 
shall be made available. A comparable replacement dwelling will be 
considered to have been made available to a person, if:
    (1) The person is informed of its location;
    (2) The person has sufficient time to negotiate and enter into a 
purchase agreement or lease for the property; and
    (3) Subject to reasonable safeguards, the person is assured of 
receiving the relocation assistance and acquisition payment to which the 
person is entitled in sufficient time to complete the purchase or lease 
of the property.
    (b) Circumstances permitting waiver. The Federal Agency funding the 
project may grant a waiver of the policy in paragraph (a) of this 
section in any case where it is demonstrated that a person must move 
because of:
    (1) A major disaster as defined in section 102 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act, as amended (42 
U.S.C. 5122);
    (2) A presidentially declared national emergency; or
    (3) Another emergency which requires immediate vacation of the real 
property, such as when continued occupancy of the displacement dwelling 
constitutes a substantial danger to the health or safety of the 
occupants or the public.
    (c) Basic conditions of emergency move. Whenever a person to be 
displaced is required to relocate from the displacement dwelling for a 
temporary period because of an emergency as described in paragraph (b) 
of this section, the Agency shall:

[[Page 205]]

    (1) Take whatever steps are necessary to assure that the person is 
temporarily relocated to a decent, safe, and sanitary dwelling;
    (2) Pay the actual reasonable out-of-pocket moving expenses and any 
reasonable increase in rent and utility costs incurred in connection 
with the temporary relocation; and
    (3) Make available to the displaced person as soon as feasible, at 
least one comparable replacement dwelling. (For purposes of filing a 
claim and meeting the eligibility requirements for a relocation payment, 
the date of displacement is the date the person moves from the 
temporarily occupied dwelling.)



Sec.  24.205  Relocation planning, advisory services, and coordination.

    (a) Relocation planning. During the early stages of development, an 
Agency shall plan Federal and federally-assisted programs or projects in 
such a manner that recognizes the problems associated with the 
displacement of individuals, families, businesses, farms, and nonprofit 
organizations and develop solutions to minimize the adverse impacts of 
displacement. Such planning, where appropriate, shall precede any action 
by an Agency which will cause displacement, and should be scoped to the 
complexity and nature of the anticipated displacing activity including 
an evaluation of program resources available to carry out timely and 
orderly relocations. Planning may involve a relocation survey or study, 
which may include the following:
    (1) An estimate of the number of households to be displaced 
including information such as owner/tenant status, estimated value and 
rental rates of properties to be acquired, family characteristics, and 
special consideration of the impacts on minorities, the elderly, large 
families, and persons with disabilities when applicable.
    (2) An estimate of the number of comparable replacement dwellings in 
the area (including price ranges and rental rates) that are expected to 
be available to fulfill the needs of those households displaced. When an 
adequate supply of comparable housing is not expected to be available, 
the Agency should consider housing of last resort actions.
    (3) An estimate of the number, type and size of the businesses, 
farms, and nonprofit organizations to be displaced and the approximate 
number of employees that may be affected.
    (4) An estimate of the availability of replacement business sites. 
When an adequate supply of replacement business sites is not expected to 
be available, the impacts of displacing the businesses should be 
considered and addressed. Planning for displaced businesses which are 
reasonably expected to involve complex or lengthy moving processes or 
small businesses with limited financial resources and/or few alternative 
relocation sites should include an analysis of business moving problems.
    (5) Consideration of any special relocation advisory services that 
may be necessary from the displacing Agency and other cooperating 
Agencies.
    (b) Loans for planning and preliminary expenses. In the event that 
an Agency elects to consider using the duplicative provision in section 
215 of the Uniform Act which permits the use of project funds for loans 
to cover planning and other preliminary expenses for the development of 
additional housing, the Lead Agency will establish criteria and 
procedures for such use upon the request of the Federal Agency funding 
the program or project.
    (c) Relocation assistance advisory services--(1) General. The Agency 
shall carry out a relocation assistance advisory program which satisfies 
the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d et seq.), Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 
3601 et seq.), and Executive Order 11063 (27 FR 11527, November 24, 
1962), and offer the services described in paragraph (c)(2) of this 
section. If the Agency determines that a person occupying property 
adjacent to the real property acquired for the project is caused 
substantial economic injury because of such acquisition, it may offer 
advisory services to such person.
    (2) Services to be provided. The advisory program shall include such 
measures, facilities, and services as may be necessary or appropriate in 
order to:

[[Page 206]]

    (i) Determine, for nonresidential (businesses, farm and nonprofit 
organizations) displacements, the relocation needs and preferences of 
each business (farm and nonprofit organization) to be displaced and 
explain the relocation payments and other assistance for which the 
business may be eligible, the related eligibility requirements, and the 
procedures for obtaining such assistance. This shall include a personal 
interview with each business. At a minimum, interviews with displaced 
business owners and operators should include the following items:
    (A) The business's replacement site requirements, current lease 
terms and other contractual obligations and the financial capacity of 
the business to accomplish the move.
    (B) Determination of the need for outside specialists in accordance 
with Sec.  24.301(g)(12) that will be required to assist in planning the 
move, assistance in the actual move, and in the reinstallation of 
machinery and/or other personal property.
    (C) For businesses, an identification and resolution of personalty/
realty issues. Every effort must be made to identify and resolve realty/
personalty issues prior to, or at the time of, the appraisal of the 
property.
    (D) An estimate of the time required for the business to vacate the 
site.
    (E) An estimate of the anticipated difficulty in locating a 
replacement property.
    (F) An identification of any advance relocation payments required 
for the move, and the Agency's legal capacity to provide them.
    (ii) Determine, for residential displacements, the relocation needs 
and preferences of each person to be displaced and explain the 
relocation payments and other assistance for which the person may be 
eligible, the related eligibility requirements, and the procedures for 
obtaining such assistance. This shall include a personal interview with 
each residential displaced person.
    (A) Provide current and continuing information on the availability, 
purchase prices, and rental costs of comparable replacement dwellings, 
and explain that the person cannot be required to move unless at least 
one comparable replacement dwelling is made available as set forth in 
Sec.  24.204(a).
    (B) As soon as feasible, the Agency shall inform the person in 
writing of the specific comparable replacement dwelling and the price or 
rent used for establishing the upper limit of the replacement housing 
payment (see Sec.  24.403 (a) and (b)) and the basis for the 
determination, so that the person is aware of the maximum replacement 
housing payment for which he or she may qualify.
    (C) Where feasible, housing shall be inspected prior to being made 
available to assure that it meets applicable standards. (See Sec.  
24.2(a)(8).) If such an inspection is not made, the Agency shall notify 
the person to be displaced that a replacement housing payment may not be 
made unless the replacement dwelling is subsequently inspected and 
determined to be decent, safe, and sanitary.
    (D) Whenever possible, minority persons shall be given reasonable 
opportunities to relocate to decent, safe, and sanitary replacement 
dwellings, not located in an area of minority concentration, that are 
within their financial means. This policy, however, does not require an 
Agency to provide a person a larger payment than is necessary to enable 
a person to relocate to a comparable replacement dwelling. (See appendix 
A, Sec.  24.205(c)(2)(ii)(D).)
    (E) The Agency shall offer all persons transportation to inspect 
housing to which they are referred.
    (F) Any displaced person that may be eligible for government housing 
assistance at the replacement dwelling shall be advised of any 
requirements of such government housing assistance program that would 
limit the size of the replacement dwelling (see Sec.  24.2(a)(6)(ix)), 
as well as of the long term nature of such rent subsidy, and the limited 
(42 month) duration of the relocation rental assistance payment.
    (iii) Provide, for nonresidential moves, current and continuing 
information on the availability, purchase prices, and rental costs of 
suitable commercial and farm properties and locations. Assist any person 
displaced from a business or farm operation to obtain and become 
established in a suitable replacement location.

[[Page 207]]

    (iv) Minimize hardships to persons in adjusting to relocation by 
providing counseling, advice as to other sources of assistance that may 
be available, and such other help as may be appropriate.
    (v) Supply persons to be displaced with appropriate information 
concerning Federal and State housing programs, disaster loan and other 
programs administered by the Small Business Administration, and other 
Federal and State programs offering assistance to displaced persons, and 
technical help to persons applying for such assistance.
    (d) Coordination of relocation activities. Relocation activities 
shall be coordinated with project work and other displacement-causing 
activities to ensure that, to the extent feasible, persons displaced 
receive consistent treatment and the duplication of functions is 
minimized. (See Sec.  24.6.)
    (e) Any person who occupies property acquired by an Agency, when 
such occupancy began subsequent to the acquisition of the property, and 
the occupancy is permitted by a short term rental agreement or an 
agreement subject to termination when the property is needed for a 
program or project, shall be eligible for advisory services, as 
determined by the Agency.



Sec.  24.206  Eviction for cause.

    (a) Eviction for cause must conform to applicable State and local 
law. Any person who occupies the real property and is not in unlawful 
occupancy on the date of the initiation of negotiations, is presumed to 
be entitled to relocation payments and other assistance set forth in 
this part unless the Agency determines that:
    (1) The person received an eviction notice prior to the initiation 
of negotiations and, as a result of that notice is later evicted; or
    (2) The person is evicted after the initiation of negotiations for 
serious or repeated violation of material terms of the lease or 
occupancy agreement; and
    (3) In either case the eviction was not undertaken for the purpose 
of evading the obligation to make available the payments and other 
assistance set forth in this part.
    (b) For purposes of determining eligibility for relocation payments, 
the date of displacement is the date the person moves, or if later, the 
date a comparable replacement dwelling is made available. This section 
applies only to persons who would otherwise have been displaced by the 
project. (See appendix A, Sec.  24.206.)



Sec.  24.207  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment shall be 
supported by such documentation as may be reasonably required to support 
expenses incurred, such as bills, certified prices, appraisals, or other 
evidence of such expenses. A displaced person must be provided 
reasonable assistance necessary to complete and file any required claim 
for payment.
    (b) Expeditious payments. The Agency shall review claims in an 
expeditious manner. The claimant shall be promptly notified as to any 
additional documentation that is required to support the claim. Payment 
for a claim shall be made as soon as feasible following receipt of 
sufficient documentation to support the claim.
    (c) Advanced payments. If a person demonstrates the need for an 
advanced relocation payment in order to avoid or reduce a hardship, the 
Agency shall issue the payment, subject to such safeguards as are 
appropriate to ensure that the objective of the payment is accomplished.
    (d) Time for filing. (1) All claims for a relocation payment shall 
be filed with the Agency no later than 18 months after:
    (i) For tenants, the date of displacement.
    (ii) For owners, the date of displacement or the date of the final 
payment for the acquisition of the real property, whichever is later.
    (2) The Agency shall waive this time period for good cause.
    (e) Notice of denial of claim. If the Agency disapproves all or part 
of a payment claimed or refuses to consider the claim on its merits 
because of untimely filing or other grounds, it shall promptly notify 
the claimant in writing of its determination, the basis for its 
determination, and the procedures for appealing that determination.

[[Page 208]]

    (f) No waiver of relocation assistance. A displacing Agency shall 
not propose or request that a displaced person waive his or her rights 
or entitlements to relocation assistance and benefits provided by the 
Uniform Act and this regulation.
    (g) Expenditure of payments. Payments, provided pursuant to this 
part, shall not be considered to constitute Federal financial 
assistance. Accordingly, this part does not apply to the expenditure of 
such payments by, or for, a displaced person.



Sec.  24.208  Aliens not lawfully present in the United States.

    (a) Each person seeking relocation payments or relocation advisory 
assistance shall, as a condition of eligibility, certify:
    (1) In the case of an individual, that he or she is either a citizen 
or national of the United States, or an alien who is lawfully present in 
the United States.
    (2) In the case of a family, that each family member is either a 
citizen or national of the United States, or an alien who is lawfully 
present in the United States. The certification may be made by the head 
of the household on behalf of other family members.
    (3) In the case of an unincorporated business, farm, or nonprofit 
organization, that each owner is either a citizen or national of the 
United States, or an alien who is lawfully present in the United States. 
The certification may be made by the principal owner, manager, or 
operating officer on behalf of other persons with an ownership interest.
    (4) In the case of an incorporated business, farm, or nonprofit 
organization, that the corporation is authorized to conduct business 
within the United States.
    (b) The certification provided pursuant to paragraphs (a)(1), 
(a)(2), and (a)(3) of this section shall indicate whether such person is 
either a citizen or national of the United States, or an alien who is 
lawfully present in the United States. Requirements concerning the 
certification in addition to those contained in this rule shall be 
within the discretion of the Federal funding Agency and, within those 
parameters, that of the displacing Agency.
    (c) In computing relocation payments under the Uniform Act, if any 
member(s) of a household or owner(s) of an unincorporated business, 
farm, or nonprofit organization is (are) determined to be ineligible 
because of a failure to be legally present in the United States, no 
relocation payments may be made to him or her. Any payment(s) for which 
such household, unincorporated business, farm, or nonprofit organization 
would otherwise be eligible shall be computed for the household, based 
on the number of eligible household members and for the unincorporated 
business, farm, or nonprofit organization, based on the ratio of 
ownership between eligible and ineligible owners.
    (d) The displacing Agency shall consider the certification provided 
pursuant to paragraph (a) of this section to be valid, unless the 
displacing Agency determines in accordance with paragraph (f) of this 
section that it is invalid based on a review of an alien's documentation 
or other information that the Agency considers reliable and appropriate.
    (e) Any review by the displacing Agency of the certifications 
provided pursuant to paragraph (a) of this section shall be conducted in 
a nondiscriminatory fashion. Each displacing Agency will apply the same 
standard of review to all such certifications it receives, except that 
such standard may be revised periodically.
    (f) If, based on a review of an alien's documentation or other 
credible evidence, a displacing Agency has reason to believe that a 
person's certification is invalid (for example a document reviewed does 
not on its face reasonably appear to be genuine), and that, as a result, 
such person may be an alien not lawfully present in the United States, 
it shall obtain the following information before making a final 
determination:
    (1) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is an alien lawfully present in 
the United States is invalid, the displacing Agency shall obtain 
verification of the alien's

[[Page 209]]

status from the local Bureau of Citizenship and Immigration Service 
(BCIS) Office. A list of local BCIS offices is available at http://
www.uscis.gov/graphics/fieldoffices/alphaa.htm. Any request for BCIS 
verification shall include the alien's full name, date of birth and 
alien number, and a copy of the alien's documentation. (If an Agency is 
unable to contact the BCIS, it may contact the FHWA in Washington, DC, 
Office of Real Estate Services or Office of Chief Counsel for a referral 
to the BCIS.)
    (2) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is a citizen or national is 
invalid, the displacing Agency shall request evidence of United States 
citizenship or nationality from such person and, if considered 
necessary, verify the accuracy of such evidence with the issuer.
    (g) No relocation payments or relocation advisory assistance shall 
be provided to a person who has not provided the certification described 
in this section or who has been determined to be not lawfully present in 
the United States, unless such person can demonstrate to the displacing 
Agency's satisfaction that the denial of relocation assistance will 
result in an exceptional and extremely unusual hardship to such person's 
spouse, parent, or child who is a citizen of the United States, or is an 
alien lawfully admitted for permanent residence in the United States.
    (h) For purposes of paragraph (g) of this section, ``exceptional and 
extremely unusual hardship'' to such spouse, parent, or child of the 
person not lawfully present in the United States means that the denial 
of relocation payments and advisory assistance to such person will 
directly result in:
    (1) A significant and demonstrable adverse impact on the health or 
safety of such spouse, parent, or child;
    (2) A significant and demonstrable adverse impact on the continued 
existence of the family unit of which such spouse, parent, or child is a 
member; or
    (3) Any other impact that the displacing Agency determines will have 
a significant and demonstrable adverse impact on such spouse, parent, or 
child.
    (i) The certification referred to in paragraph (a) of this section 
may be included as part of the claim for relocation payments described 
in Sec.  24.207 of this part.

(Approved by the Office of Management and Budget under control number 
2105-0508)



Sec.  24.209  Relocation payments not considered as income.

    No relocation payment received by a displaced person under this part 
shall be considered as income for the purpose of the Internal Revenue 
Code of 1954, which has been redesignated as the Internal Revenue Code 
of 1986 (Title 26, U.S. Code), or for the purpose of determining the 
eligibility or the extent of eligibility of any person for assistance 
under the Social Security Act (42 U.S. Code 301 et seq.) or any other 
Federal law, except for any Federal law providing low-income housing 
assistance.



           Subpart D_Payments for Moving and Related Expenses



Sec.  24.301  Payment for actual reasonable moving and related expenses.

    (a) General. (1) Any owner-occupant or tenant who qualifies as a 
displaced person (defined at Sec.  24.2(a)(9)) and who moves from a 
dwelling (including a mobile home) or who moves from a business, farm or 
nonprofit organization is entitled to payment of his or her actual 
moving and related expenses, as the Agency determines to be reasonable 
and necessary.
    (2) A non-occupant owner of a rented mobile home is eligible for 
actual cost reimbursement under Sec.  24.301 to relocate the mobile 
home. If the mobile home is not acquired as real estate, but the 
homeowner-occupant obtains a replacement housing payment under one of 
the circumstances described at Sec.  24.502(a)(3), the home-owner 
occupant is not eligible for payment for moving the mobile home, but may 
be eligible for a payment for moving personal property from the mobile 
home.
    (b) Moves from a dwelling. A displaced person's actual, reasonable 
and necessary moving expenses for moving personal property from a 
dwelling may be determined based on the cost of one, or a combination of 
the following methods: (Eligible expenses for moves from

[[Page 210]]

a dwelling include the expenses described in paragraphs (g)(1) through 
(g)(7) of this section. Self-moves based on the lower of two bids or 
estimates are not eligible for reimbursement under this section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec.  
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (c) Moves from a mobile home. A displaced person's actual, 
reasonable and necessary moving expenses for moving personal property 
from a mobile home may be determined based on the cost of one, or a 
combination of the following methods: (self-moves based on the lower of 
two bids or estimates are not eligible for reimbursement under this 
section. Eligible expenses for moves from a mobile home include those 
expenses described in paragraphs (g)(1) through (g)(7) of this section. 
In addition to the items in paragraph (a) of this section, the owner-
occupant of a mobile home that is moved as personal property and used as 
the person's replacement dwelling, is also eligible for the moving 
expenses described in paragraphs (g)(8) through (g)(10) of this 
section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec.  
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (d) Moves from a business, farm or nonprofit organization. Personal 
property as determined by an inventory from a business, farm or 
nonprofit organization may be moved by one or a combination of the 
following methods: (Eligible expenses for moves from a business, farm or 
nonprofit organization include those expenses described in paragraphs 
(g)(1) through (g)(7) of this section and paragraphs (g)(11) through 
(g)(18) of this section and Sec.  24.303.)
    (1) Commercial move. Based on the lower of two bids or estimates 
prepared by a commercial mover. At the Agency's discretion, payment for 
a low cost or uncomplicated move may be based on a single bid or 
estimate.
    (2) Self-move. A self-move payment may be based on one or a 
combination of the following:
    (i) The lower of two bids or estimates prepared by a commercial 
mover or qualified Agency staff person. At the Agency's discretion, 
payment for a low cost or uncomplicated move may be based on a single 
bid or estimate; or
    (ii) Supported by receipted bills for labor and equipment. Hourly 
labor rates should not exceed the rates paid by a commercial mover to 
employees performing the same activity and, equipment rental fees should 
be based on the actual rental cost of the equipment but not to exceed 
the cost paid by a commercial mover.
    (e) Personal property only. Eligible expenses for a person who is 
required to move personal property from real property but is not 
required to move from a dwelling (including a mobile home), business, 
farm or nonprofit organization include those expenses described in 
paragraphs (g)(1) through (g)(7) and (g)(18) of this section. (See 
appendix A, Sec.  24.301(e).)
    (f) Advertising signs. The amount of a payment for direct loss of an 
advertising sign, which is personal property shall be the lesser of:
    (1) The depreciated reproduction cost of the sign, as determined by 
the Agency, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign, but with no allowance for 
storage.
    (g) Eligible actual moving expenses. (1) Transportation of the 
displaced person and personal property. Transportation costs for a 
distance beyond 50 miles are

[[Page 211]]

not eligible, unless the Agency determines that relocation beyond 50 
miles is justified.
    (2) Packing, crating, unpacking, and uncrating of the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling, and 
reinstalling relocated household appliances and other personal property. 
For businesses, farms or nonprofit organizations this includes 
machinery, equipment, substitute personal property, and connections to 
utilities available within the building; it also includes modifications 
to the personal property, including those mandated by Federal, State or 
local law, code or ordinance, necessary to adapt it to the replacement 
structure, the replacement site, or the utilities at the replacement 
site, and modifications necessary to adapt the utilities at the 
replacement site to the personal property.
    (4) Storage of the personal property for a period not to exceed 12 
months, unless the Agency determines that a longer period is necessary.
    (5) Insurance for the replacement value of the property in 
connection with the move and necessary storage.
    (6) The replacement value of property lost, stolen, or damaged in 
the process of moving (not through the fault or negligence of the 
displaced person, his or her agent, or employee) where insurance 
covering such loss, theft, or damage is not reasonably available.
    (7) Other moving-related expenses that are not listed as ineligible 
under Sec.  24.301(h), as the Agency determines to be reasonable and 
necessary.
    (8) The reasonable cost of disassembling, moving, and reassembling 
any appurtenances attached to a mobile home, such as porches, decks, 
skirting, and awnings, which were not acquired, anchoring of the unit, 
and utility ``hookup'' charges.
    (9) The reasonable cost of repairs and/or modifications so that a 
mobile home can be moved and/or made decent, safe, and sanitary.
    (10) The cost of a nonrefundable mobile home park entrance fee, to 
the extent it does not exceed the fee at a comparable mobile home park, 
if the person is displaced from a mobile home park or the Agency 
determines that payment of the fee is necessary to effect relocation.
    (11) Any license, permit, fees or certification required of the 
displaced person at the replacement location. However, the payment may 
be based on the remaining useful life of the existing license, permit, 
fees or certification.
    (12) Professional services as the Agency determines to be actual, 
reasonable and necessary for:
    (i) Planning the move of the personal property;
    (ii) Moving the personal property; and
    (iii) Installing the relocated personal property at the replacement 
location.
    (13) Relettering signs and replacing stationery on hand at the time 
of displacement that are made obsolete as a result of the move.
    (14) Actual direct loss of tangible personal property incurred as a 
result of moving or discontinuing the business or farm operation. The 
payment shall consist of the lesser of:
    (i) The fair market value in place of the item, as is for continued 
use, less the proceeds from its sale. (To be eligible for payment, the 
claimant must make a good faith effort to sell the personal property, 
unless the Agency determines that such effort is not necessary. When 
payment for property loss is claimed for goods held for sale, the fair 
market value shall be based on the cost of the goods to the business, 
not the potential selling prices.); or
    (ii) The estimated cost of moving the item as is, but not including 
any allowance for storage; or for reconnecting a piece of equipment if 
the equipment is in storage or not being used at the acquired site. (See 
appendix A, Sec.  24.301(g)(14)(i) and (ii).) If the business or farm 
operation is discontinued, the estimated cost of moving the item shall 
be based on a moving distance of 50 miles.
    (15) The reasonable cost incurred in attempting to sell an item that 
is not to be relocated.
    (16) Purchase of substitute personal property. If an item of 
personal property, which is used as part of a business or farm operation 
is not moved but is promptly replaced with a substitute

[[Page 212]]

item that performs a comparable function at the replacement site, the 
displaced person is entitled to payment of the lesser of:
    (i) The cost of the substitute item, including installation costs of 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item; or
    (ii) The estimated cost of moving and reinstalling the replaced item 
but with no allowance for storage. At the Agency's discretion, the 
estimated cost for a low cost or uncomplicated move may be based on a 
single bid or estimate.
    (17) Searching for a replacement location. A business or farm 
operation is entitled to reimbursement for actual expenses, not to 
exceed $2,500, as the Agency determines to be reasonable, which are 
incurred in searching for a replacement location, including:
    (i) Transportation;
    (ii) Meals and lodging away from home;
    (iii) Time spent searching, based on reasonable salary or earnings;
    (iv) Fees paid to a real estate agent or broker to locate a 
replacement site, exclusive of any fees or commissions related to the 
purchase of such sites;
    (v) Time spent in obtaining permits and attending zoning hearings; 
and
    (vi) Time spent negotiating the purchase of a replacement site based 
on a reasonable salary or earnings.
    (18) Low value/high bulk. When the personal property to be moved is 
of low value and high bulk, and the cost of moving the property would be 
disproportionate to its value in the judgment of the displacing Agency, 
the allowable moving cost payment shall not exceed the lesser of: The 
amount which would be received if the property were sold at the site or 
the replacement cost of a comparable quantity delivered to the new 
business location. Examples of personal property covered by this 
provision include, but are not limited to, stockpiled sand, gravel, 
minerals, metals and other similar items of personal property as 
determined by the Agency.
    (h) Ineligible moving and related expenses. A displaced person is 
not entitled to payment for:
    (1) The cost of moving any structure or other real property 
improvement in which the displaced person reserved ownership. (However, 
this part does not preclude the computation under Sec.  
24.401(c)(2)(iii));
    (2) Interest on a loan to cover moving expenses;
    (3) Loss of goodwill;
    (4) Loss of profits;
    (5) Loss of trained employees;
    (6) Any additional operating expenses of a business or farm 
operation incurred because of operating in a new location except as 
provided in Sec.  24.304(a)(6);
    (7) Personal injury;
    (8) Any legal fee or other cost for preparing a claim for a 
relocation payment or for representing the claimant before the Agency;
    (9) Expenses for searching for a replacement dwelling;
    (10) Physical changes to the real property at the replacement 
location of a business or farm operation except as provided in 
Sec. Sec.  24.301(g)(3) and 24.304(a);
    (11) Costs for storage of personal property on real property already 
owned or leased by the displaced person, and
    (12) Refundable security and utility deposits.
    (i) Notification and inspection (nonresidential). The Agency shall 
inform the displaced person, in writing, of the requirements of this 
section as soon as possible after the initiation of negotiations. This 
information may be included in the relocation information provided the 
displaced person as set forth in Sec.  24.203. To be eligible for 
payments under this section the displaced person must:
    (1) Provide the Agency reasonable advance notice of the approximate 
date of the start of the move or disposition of the personal property 
and an inventory of the items to be moved. However, the Agency may waive 
this notice requirement after documenting its file accordingly.
    (2) Permit the Agency to make reasonable and timely inspections of 
the personal property at both the displacement and replacement sites and 
to monitor the move.
    (j) Transfer of ownership (nonresidential). Upon request and in 
accordance with applicable law, the claimant shall transfer to the 
Agency ownership of

[[Page 213]]

any personal property that has not been moved, sold, or traded in.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.302  Fixed payment for moving expenses--residential moves.

    Any person displaced from a dwelling or a seasonal residence or a 
dormitory style room is entitled to receive a fixed moving cost payment 
as an alternative to a payment for actual moving and related expenses 
under Sec.  24.301. This payment shall be determined according to the 
Fixed Residential Moving Cost Schedule \3\ approved by the Federal 
Highway Administration and published in the Federal Register on a 
periodic basis. The payment to a person with minimal personal 
possessions who is in occupancy of a dormitory style room or a person 
whose residential move is performed by an Agency at no cost to the 
person shall be limited to the amount stated in the most recent edition 
of the Fixed Residential Moving Cost Schedule.
---------------------------------------------------------------------------

    \3\ The Fixed Residential Moving Cost Schedule is available at the 
following URL: http://www.fhwa.dot.gov//////realestate/fixsch96.htm. 
Agencies are cautioned to ensure they are using the most recent edition.
---------------------------------------------------------------------------



Sec.  24.303  Related nonresidential eligible expenses.

    The following expenses, in addition to those provided by Sec.  
24.301 for moving personal property, shall be provided if the Agency 
determines that they are actual, reasonable and necessary:
    (a) Connection to available nearby utilities from the right-of-way 
to improvements at the replacement site.
    (b) Professional services performed prior to the purchase or lease 
of a replacement site to determine its suitability for the displaced 
person's business operation including but not limited to, soil testing, 
feasibility and marketing studies (excluding any fees or commissions 
directly related to the purchase or lease of such site). At the 
discretion of the Agency a reasonable pre-approved hourly rate may be 
established. (See appendix A, Sec.  24.303(b).)
    (c) Impact fees or one time assessments for anticipated heavy 
utility usage, as determined necessary by the Agency.



Sec.  24.304  Reestablishment expenses--nonresidential moves.

    In addition to the payments available under Sec. Sec.  24.301 and 
24.303 of this subpart, a small business, as defined in Sec.  
24.2(a)(24), farm or nonprofit organization is entitled to receive a 
payment, not to exceed $10,000, for expenses actually incurred in 
relocating and reestablishing such small business, farm or nonprofit 
organization at a replacement site.
    (a) Eligible expenses. Reestablishment expenses must be reasonable 
and necessary, as determined by the Agency. They include, but are not 
limited to, the following:
    (1) Repairs or improvements to the replacement real property as 
required by Federal, State or local law, code or ordinance.
    (2) Modifications to the replacement property to accommodate the 
business operation or make replacement structures suitable for 
conducting the business.
    (3) Construction and installation costs for exterior signing to 
advertise the business.
    (4) Redecoration or replacement of soiled or worn surfaces at the 
replacement site, such as paint, paneling, or carpeting.
    (5) Advertisement of replacement location.
    (6) Estimated increased costs of operation during the first 2 years 
at the replacement site for such items as:
    (i) Lease or rental charges;
    (ii) Personal or real property taxes;
    (iii) Insurance premiums; and
    (iv) Utility charges, excluding impact fees.
    (7) Other items that the Agency considers essential to the 
reestablishment of the business.
    (b) Ineligible expenses. The following is a nonexclusive listing of 
reestablishment expenditures not considered to be reasonable, necessary, 
or otherwise eligible:
    (1) Purchase of capital assets, such as, office furniture, filing 
cabinets, machinery, or trade fixtures.

[[Page 214]]

    (2) Purchase of manufacturing materials, production supplies, 
product inventory, or other items used in the normal course of the 
business operation.
    (3) Interest on money borrowed to make the move or purchase the 
replacement property.
    (4) Payment to a part-time business in the home which does not 
contribute materially (defined at Sec.  24.2(a)(7)) to the household 
income.



Sec.  24.305  Fixed payment for moving expenses--nonresidential moves.

    (a) Business. A displaced business may be eligible to choose a fixed 
payment in lieu of the payments for actual moving and related expenses, 
and actual reasonable reestablishment expenses provided by Sec. Sec.  
24.301, 24.303 and 24.304. Such fixed payment, except for payment to a 
nonprofit organization, shall equal the average annual net earnings of 
the business, as computed in accordance with paragraph (e) of this 
section, but not less than $1,000 nor more than $20,000. The displaced 
business is eligible for the payment if the Agency determines that:
    (1) The business owns or rents personal property which must be moved 
in connection with such displacement and for which an expense would be 
incurred in such move and, the business vacates or relocates from its 
displacement site;
    (2) The business cannot be relocated without a substantial loss of 
its existing patronage (clientele or net earnings). A business is 
assumed to meet this test unless the Agency determines that it will not 
suffer a substantial loss of its existing patronage;
    (3) The business is not part of a commercial enterprise having more 
than three other entities which are not being acquired by the Agency, 
and which are under the same ownership and engaged in the same or 
similar business activities.
    (4) The business is not operated at a displacement dwelling solely 
for the purpose of renting such dwelling to others;
    (5) The business is not operated at the displacement site solely for 
the purpose of renting the site to others; and
    (6) The business contributed materially to the income of the 
displaced person during the 2 taxable years prior to displacement. (See 
Sec.  24.2(a)(7).)
    (b) Determining the number of businesses. In determining whether two 
or more displaced legal entities constitute a single business, which is 
entitled to only one fixed payment, all pertinent factors shall be 
considered, including the extent to which:
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business; and
    (4) The same person or closely related persons own, control, or 
manage the affairs of the entities.
    (c) Farm operation. A displaced farm operation (defined at Sec.  
24.2(a)(12)) may choose a fixed payment, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, in an amount equal to its average annual net earnings as 
computed in accordance with paragraph (e) of this section, but not less 
than $1,000 nor more than $20,000. In the case of a partial acquisition 
of land, which was a farm operation before the acquisition, the fixed 
payment shall be made only if the Agency determines that:
    (1) The acquisition of part of the land caused the operator to be 
displaced from the farm operation on the remaining land; or
    (2) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (d) Nonprofit organization. A displaced nonprofit organization may 
choose a fixed payment of $1,000 to $20,000, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, if the Agency determines that it cannot be relocated without a 
substantial loss of existing patronage (membership or clientele). A 
nonprofit organization is assumed to meet this test, unless the Agency 
demonstrates otherwise. Any payment in excess of $1,000 must be 
supported with financial statements

[[Page 215]]

for the two 12-month periods prior to the acquisition. The amount to be 
used for the payment is the average of 2 years annual gross revenues 
less administrative expenses. (See appendix A, Sec.  24.305(d).)
    (e) Average annual net earnings of a business or farm operation. The 
average annual net earnings of a business or farm operation are one-half 
of its net earnings before Federal, State, and local income taxes during 
the 2 taxable years immediately prior to the taxable year in which it 
was displaced. If the business or farm was not in operation for the full 
2 taxable years prior to displacement, net earnings shall be based on 
the actual period of operation at the displacement site during the 2 
taxable years prior to displacement, projected to an annual rate. 
Average annual net earnings may be based upon a different period of time 
when the Agency determines it to be more equitable. Net earnings include 
any compensation obtained from the business or farm operation by its 
owner, the owner's spouse, and dependents. The displaced person shall 
furnish the Agency proof of net earnings through income tax returns, 
certified financial statements, or other reasonable evidence, which the 
Agency determines is satisfactory. (See appendix A, Sec.  24.305(e).)



Sec.  24.306  Discretionary utility relocation payments.

    (a) Whenever a program or project undertaken by a displacing Agency 
causes the relocation of a utility facility (see Sec.  24.2(a)(31)) and 
the relocation of the facility creates extraordinary expenses for its 
owner, the displacing Agency may, at its option, make a relocation 
payment to the owner for all or part of such expenses, if the following 
criteria are met:
    (1) The utility facility legally occupies State or local government 
property, or property over which the State or local government has an 
easement or right-of-way;
    (2) The utility facility's right of occupancy thereon is pursuant to 
State law or local ordinance specifically authorizing such use, or where 
such use and occupancy has been granted through a franchise, use and 
occupancy permit, or other similar agreement;
    (3) Relocation of the utility facility is required by and is 
incidental to the primary purpose of the project or program undertaken 
by the displacing Agency;
    (4) There is no Federal law, other than the Uniform Act, which 
clearly establishes a policy for the payment of utility moving costs 
that is applicable to the displacing Agency's program or project; and
    (5) State or local government reimbursement for utility moving costs 
or payment of such costs by the displacing Agency is in accordance with 
State law.
    (b) For the purposes of this section, the term extraordinary 
expenses means those expenses which, in the opinion of the displacing 
Agency, are not routine or predictable expenses relating to the 
utility's occupancy of rights-of-way, and are not ordinarily budgeted as 
operating expenses, unless the owner of the utility facility has 
explicitly and knowingly agreed to bear such expenses as a condition for 
use of the property, or has voluntarily agreed to be responsible for 
such expenses.
    (c) A relocation payment to a utility facility owner for moving 
costs under this section may not exceed the cost to functionally restore 
the service disrupted by the federally-assisted program or project, less 
any increase in value of the new facility and salvage value of the old 
facility. The displacing Agency and the utility facility owner shall 
reach prior agreement on the nature of the utility relocation work to be 
accomplished, the eligibility of the work for reimbursement, the 
responsibilities for financing and accomplishing the work, and the 
method of accumulating costs and making payment. (See appendix A, Sec.  
24.306.)



                 Subpart E_Replacement Housing Payments



Sec.  24.401  Replacement housing payment for 180-day homeowner-occupants.

    (a) Eligibility. A displaced person is eligible for the replacement 
housing payment for a 180-day homeowner-occupant if the person:
    (1) Has actually owned and occupied the displacement dwelling for 
not less

[[Page 216]]

than 180 days immediately prior to the initiation of negotiations; and
    (2) Purchases and occupies a decent, safe, and sanitary replacement 
dwelling within one year after the later of the following dates (except 
that the Agency may extend such one year period for good cause):
    (i) The date the displaced person receives final payment for the 
displacement dwelling or, in the case of condemnation, the date the full 
amount of the estimate of just compensation is deposited in the court; 
or
    (ii) The date the displacing Agency's obligation under Sec.  24.204 
is met.
    (b) Amount of payment. The replacement housing payment for an 
eligible 180-day homeowner-occupant may not exceed $22,500. (See also 
Sec.  24.404.) The payment under this subpart is limited to the amount 
necessary to relocate to a comparable replacement dwelling within one 
year from the date the displaced homeowner-occupant is paid for the 
displacement dwelling, or the date a comparable replacement dwelling is 
made available to such person, whichever is later. The payment shall be 
the sum of:
    (1) The amount by which the cost of a replacement dwelling exceeds 
the acquisition cost of the displacement dwelling, as determined in 
accordance with paragraph (c) of this section;
    (2) The increased interest costs and other debt service costs which 
are incurred in connection with the mortgage(s) on the replacement 
dwelling, as determined in accordance with paragraph (d) of this 
section; and
    (3) The reasonable expenses incidental to the purchase of the 
replacement dwelling, as determined in accordance with paragraph (e) of 
this section.
    (c) Price differential--(1) Basic computation. The price 
differential to be paid under paragraph (b)(1) of this section is the 
amount which must be added to the acquisition cost of the displacement 
dwelling and site (see Sec.  24.2(a)(11)) to provide a total amount 
equal to the lesser of:
    (i) The reasonable cost of a comparable replacement dwelling as 
determined in accordance with Sec.  24.403(a); or
    (ii) The purchase price of the decent, safe, and sanitary 
replacement dwelling actually purchased and occupied by the displaced 
person.
    (2) Owner retention of displacement dwelling. If the owner retains 
ownership of his or her dwelling, moves it from the displacement site, 
and reoccupies it on a replacement site, the purchase price of the 
replacement dwelling shall be the sum of:
    (i) The cost of moving and restoring the dwelling to a condition 
comparable to that prior to the move;
    (ii) The cost of making the unit a decent, safe, and sanitary 
replacement dwelling (defined at Sec.  24.2(a)(8)); and
    (iii) The current fair market value for residential use of the 
replacement dwelling site (see appendix A, Sec.  24.401(c)(2)(iii)), 
unless the claimant rented the displacement site and there is a 
reasonable opportunity for the claimant to rent a suitable replacement 
site; and
    (iv) The retention value of the dwelling, if such retention value is 
reflected in the ``acquisition cost'' used when computing the 
replacement housing payment.
    (d) Increased mortgage interest costs. The displacing Agency shall 
determine the factors to be used in computing the amount to be paid to a 
displaced person under paragraph (b)(2) of this section. The payment for 
increased mortgage interest cost shall be the amount which will reduce 
the mortgage balance on a new mortgage to an amount which could be 
amortized with the same monthly payment for principal and interest as 
that for the mortgage(s) on the displacement dwelling. In addition, 
payments shall include other debt service costs, if not paid as 
incidental costs, and shall be based only on bona fide mortgages that 
were valid liens on the displacement dwelling for at least 180 days 
prior to the initiation of negotiations. Paragraphs (d)(1) through 
(d)(5) of this section shall apply to the computation of the increased 
mortgage interest costs payment, which payment shall be contingent upon 
a mortgage being placed on the replacement dwelling.
    (1) The payment shall be based on the unpaid mortgage balance(s) on 
the displacement dwelling; however, in the event the displaced person 
obtains a smaller mortgage than the mortgage

[[Page 217]]

balance(s) computed in the buydown determination, the payment will be 
prorated and reduced accordingly. (See appendix A, Sec.  24.401(d).) In 
the case of a home equity loan the unpaid balance shall be that balance 
which existed 180 days prior to the initiation of negotiations or the 
balance on the date of acquisition, whichever is less.
    (2) The payment shall be based on the remaining term of the 
mortgage(s) on the displacement dwelling or the term of the new 
mortgage, whichever is shorter.
    (3) The interest rate on the new mortgage used in determining the 
amount of the payment shall not exceed the prevailing fixed interest 
rate for conventional mortgages currently charged by mortgage lending 
institutions in the area in which the replacement dwelling is located.
    (4) Purchaser's points and loan origination or assumption fees, but 
not seller's points, shall be paid to the extent:
    (i) They are not paid as incidental expenses;
    (ii) They do not exceed rates normal to similar real estate 
transactions in the area;
    (iii) The Agency determines them to be necessary; and
    (iv) The computation of such points and fees shall be based on the 
unpaid mortgage balance on the displacement dwelling, less the amount 
determined for the reduction of the mortgage balance under this section.
    (5) The displaced person shall be advised of the approximate amount 
of this payment and the conditions that must be met to receive the 
payment as soon as the facts relative to the person's current 
mortgage(s) are known and the payment shall be made available at or near 
the time of closing on the replacement dwelling in order to reduce the 
new mortgage as intended.
    (e) Incidental expenses. The incidental expenses to be paid under 
paragraph (b)(3) of this section or Sec.  24.402(c)(1) are those 
necessary and reasonable costs actually incurred by the displaced person 
incident to the purchase of a replacement dwelling, and customarily paid 
by the buyer, including:
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing surveys 
and plats, and recording fees.
    (2) Lender, FHA, or VA application and appraisal fees.
    (3) Loan origination or assumption fees that do not represent 
prepaid interest.
    (4) Professional home inspection, certification of structural 
soundness, and termite inspection.
    (5) Credit report.
    (6) Owner's and mortgagee's evidence of title, e.g., title 
insurance, not to exceed the costs for a comparable replacement 
dwelling.
    (7) Escrow agent's fee.
    (8) State revenue or documentary stamps, sales or transfer taxes 
(not to exceed the costs for a comparable replacement dwelling).
    (9) Such other costs as the Agency determine to be incidental to the 
purchase.
    (f) Rental assistance payment for 180-day homeowner. A 180-day 
homeowner-occupant, who could be eligible for a replacement housing 
payment under paragraph (a) of this section but elects to rent a 
replacement dwelling, is eligible for a rental assistance payment. The 
amount of the rental assistance payment is based on a determination of 
market rent for the acquired dwelling compared to a comparable rental 
dwelling available on the market. The difference, if any, is computed in 
accordance with Sec.  24.402(b)(1), except that the limit of $5,250 does 
not apply, and disbursed in accordance with Sec.  24.402(b)(3). Under no 
circumstances would the rental assistance payment exceed the amount that 
could have been received under Sec.  24.401(b)(1) had the 180-day 
homeowner elected to purchase and occupy a comparable replacement 
dwelling.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.402  Replacement housing payment for 90-day occupants.

    (a) Eligibility. A tenant or owner-occupant displaced from a 
dwelling is entitled to a payment not to exceed $5,250 for rental 
assistance, as computed in accordance with paragraph (b) of this 
section, or downpayment assistance, as

[[Page 218]]

computed in accordance with paragraph (c) of this section, if such 
displaced person:
    (1) Has actually and lawfully occupied the displacement dwelling for 
at least 90 days immediately prior to the initiation of negotiations; 
and
    (2) Has rented, or purchased, and occupied a decent, safe, and 
sanitary replacement dwelling within 1 year (unless the Agency extends 
this period for good cause) after:
    (i) For a tenant, the date he or she moves from the displacement 
dwelling; or
    (ii) For an owner-occupant, the later of:
    (A) The date he or she receives final payment for the displacement 
dwelling, or in the case of condemnation, the date the full amount of 
the estimate of just compensation is deposited with the court; or
    (B) The date he or she moves from the displacement dwelling.
    (b) Rental assistance payment--(1) Amount of payment. An eligible 
displaced person who rents a replacement dwelling is entitled to a 
payment not to exceed $5,250 for rental assistance. (See Sec.  24.404.) 
Such payment shall be 42 times the amount obtained by subtracting the 
base monthly rental for the displacement dwelling from the lesser of:
    (i) The monthly rent and estimated average monthly cost of utilities 
for a comparable replacement dwelling; or
    (ii) The monthly rent and estimated average monthly cost of 
utilities for the decent, safe, and sanitary replacement dwelling 
actually occupied by the displaced person.
    (2) Base monthly rental for displacement dwelling. The base monthly 
rental for the displacement dwelling is the lesser of:
    (i) The average monthly cost for rent and utilities at the 
displacement dwelling for a reasonable period prior to displacement, as 
determined by the Agency (for an owner-occupant, use the fair market 
rent for the displacement dwelling. For a tenant who paid little or no 
rent for the displacement dwelling, use the fair market rent, unless its 
use would result in a hardship because of the person's income or other 
circumstances);
    (ii) Thirty (30) percent of the displaced person's average monthly 
gross household income if the amount is classified as ``low income'' by 
the U.S. Department of Housing and Urban Development's Annual Survey of 
Income Limits for the Public Housing and Section 8 Programs \4\. The 
base monthly rental shall be established solely on the criteria in 
paragraph (b)(2)(i) of this section for persons with income exceeding 
the survey's ``low income'' limits, for persons refusing to provide 
appropriate evidence of income, and for persons who are dependents. A 
full time student or resident of an institution may be assumed to be a 
dependent, unless the person demonstrates otherwise; or,
---------------------------------------------------------------------------

    \4\ The U.S. Department of Housing and Urban Development's Public 
Housing and Section 8 Program Income Limits are updated annually and are 
available on FHWA's Web site at http://www.fhwa.dot.gov/realestate/ua/
ualic.htm.
---------------------------------------------------------------------------

    (iii) The total of the amounts designated for shelter and utilities 
if the displaced person is receiving a welfare assistance payment from a 
program that designates the amounts for shelter and utilities.
    (3) Manner of disbursement. A rental assistance payment may, at the 
Agency's discretion, be disbursed in either a lump sum or in 
installments. However, except as limited by Sec.  24.403(f), the full 
amount vests immediately, whether or not there is any later change in 
the person's income or rent, or in the condition or location of the 
person's housing.
    (c) Downpayment assistance payment--(1) Amount of payment. An 
eligible displaced person who purchases a replacement dwelling is 
entitled to a downpayment assistance payment in the amount the person 
would receive under paragraph (b) of this section if the person rented a 
comparable replacement dwelling. At the Agency's discretion, a 
downpayment assistance payment that is less than $5,250 may be increased 
to any amount not to exceed $5,250. However, the payment to a displaced 
homeowner shall not exceed the amount the owner would receive under 
Sec.  24.401(b) if he or she met the 180-day occupancy requirement. If 
the Agency elects to provide the maximum payment of $5,250 as

[[Page 219]]

a downpayment, the Agency shall apply this discretion in a uniform and 
consistent manner, so that eligible displaced persons in like 
circumstances are treated equally. A displaced person eligible to 
receive a payment as a 180-day owner-occupant under Sec.  24.401(a) is 
not eligible for this payment. (See appendix A, Sec.  24.402(c).)
    (2) Application of payment. The full amount of the replacement 
housing payment for downpayment assistance must be applied to the 
purchase price of the replacement dwelling and related incidental 
expenses.



Sec.  24.403  Additional rules governing replacement housing payments.

    (a) Determining cost of comparable replacement dwelling. The upper 
limit of a replacement housing payment shall be based on the cost of a 
comparable replacement dwelling (defined at Sec.  24.2(a)(6)).
    (1) If available, at least three comparable replacement dwellings 
shall be examined and the payment computed on the basis of the dwelling 
most nearly representative of, and equal to, or better than, the 
displacement dwelling.
    (2) If the site of the comparable replacement dwelling lacks a major 
exterior attribute of the displacement dwelling site, (e.g., the site is 
significantly smaller or does not contain a swimming pool), the value of 
such attribute shall be subtracted from the acquisition cost of the 
displacement dwelling for purposes of computing the payment.
    (3) If the acquisition of a portion of a typical residential 
property causes the displacement of the owner from the dwelling and the 
remainder is a buildable residential lot, the Agency may offer to 
purchase the entire property. If the owner refuses to sell the remainder 
to the Agency, the fair market value of the remainder may be added to 
the acquisition cost of the displacement dwelling for purposes of 
computing the replacement housing payment.
    (4) To the extent feasible, comparable replacement dwellings shall 
be selected from the neighborhood in which the displacement dwelling was 
located or, if that is not possible, in nearby or similar neighborhoods 
where housing costs are generally the same or higher.
    (5) Multiple occupants of one displacement dwelling. If two or more 
occupants of the displacement dwelling move to separate replacement 
dwellings, each occupant is entitled to a reasonable prorated share, as 
determined by the Agency, of any relocation payments that would have 
been made if the occupants moved together to a comparable replacement 
dwelling. However, if the Agency determines that two or more occupants 
maintained separate households within the same dwelling, such occupants 
have separate entitlements to relocation payments.
    (6) Deductions from relocation payments. An Agency shall deduct the 
amount of any advance relocation payment from the relocation payment(s) 
to which a displaced person is otherwise entitled. The Agency shall not 
withhold any part of a relocation payment to a displaced person to 
satisfy an obligation to any other creditor.
    (7) Mixed-use and multifamily properties. If the displacement 
dwelling was part of a property that contained another dwelling unit 
and/or space used for nonresidential purposes, and/or is located on a 
lot larger than typical for residential purposes, only that portion of 
the acquisition payment which is actually attributable to the 
displacement dwelling shall be considered the acquisition cost when 
computing the replacement housing payment.
    (b) Inspection of replacement dwelling. Before making a replacement 
housing payment or releasing the initial payment from escrow, the Agency 
or its designated representative shall inspect the replacement dwelling 
and determine whether it is a decent, safe, and sanitary dwelling as 
defined at Sec.  24.2(a)(8).
    (c) Purchase of replacement dwelling. A displaced person is 
considered to have met the requirement to purchase a replacement 
dwelling, if the person:
    (1) Purchases a dwelling;
    (2) Purchases and rehabilitates a substandard dwelling;
    (3) Relocates a dwelling which he or she owns or purchases;
    (4) Constructs a dwelling on a site he or she owns or purchases;

[[Page 220]]

    (5) Contracts for the purchase or construction of a dwelling on a 
site provided by a builder or on a site the person owns or purchases; or
    (6) Currently owns a previously purchased dwelling and site, 
valuation of which shall be on the basis of current fair market value.
    (d) Occupancy requirements for displacement or replacement dwelling. 
No person shall be denied eligibility for a replacement housing payment 
solely because the person is unable to meet the occupancy requirements 
set forth in these regulations for a reason beyond his or her control, 
including:
    (1) A disaster, an emergency, or an imminent threat to the public 
health or welfare, as determined by the President, the Federal Agency 
funding the project, or the displacing Agency; or
    (2) Another reason, such as a delay in the construction of the 
replacement dwelling, military duty, or hospital stay, as determined by 
the Agency.
    (e) Conversion of payment. A displaced person who initially rents a 
replacement dwelling and receives a rental assistance payment under 
Sec.  24.402(b) is eligible to receive a payment under Sec.  24.401 or 
Sec.  24.402(c) if he or she meets the eligibility criteria for such 
payments, including purchase and occupancy within the prescribed 1-year 
period. Any portion of the rental assistance payment that has been 
disbursed shall be deducted from the payment computed under Sec.  24.401 
or Sec.  24.402(c).
    (f) Payment after death. A replacement housing payment is personal 
to the displaced person and upon his or her death the undisbursed 
portion of any such payment shall not be paid to the heirs or assigns, 
except that:
    (1) The amount attributable to the displaced person's period of 
actual occupancy of the replacement housing shall be paid.
    (2) Any remaining payment shall be disbursed to the remaining family 
members of the displaced household in any case in which a member of a 
displaced family dies.
    (3) Any portion of a replacement housing payment necessary to 
satisfy the legal obligation of an estate in connection with the 
selection of a replacement dwelling by or on behalf of a deceased person 
shall be disbursed to the estate.
    (g) Insurance proceeds. To the extent necessary to avoid duplicate 
compensation, the amount of any insurance proceeds received by a person 
in connection with a loss to the displacement dwelling due to a 
catastrophic occurrence (fire, flood, etc.) shall be included in the 
acquisition cost of the displacement dwelling when computing the price 
differential. (See Sec.  24.3.)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.404  Replacement housing of last resort.

    (a) Determination to provide replacement housing of last resort. 
Whenever a program or project cannot proceed on a timely basis because 
comparable replacement dwellings are not available within the monetary 
limits for owners or tenants, as specified in Sec.  24.401 or Sec.  
24.402, as appropriate, the Agency shall provide additional or 
alternative assistance under the provisions of this subpart. Any 
decision to provide last resort housing assistance must be adequately 
justified either:
    (1) On a case-by-case basis, for good cause, which means that 
appropriate consideration has been given to:
    (i) The availability of comparable replacement housing in the 
program or project area;
    (ii) The resources available to provide comparable replacement 
housing; and
    (iii) The individual circumstances of the displaced person, or
    (2) By a determination that:
    (i) There is little, if any, comparable replacement housing 
available to displaced persons within an entire program or project area; 
and, therefore, last resort housing assistance is necessary for the area 
as a whole;
    (ii) A program or project cannot be advanced to completion in a 
timely manner without last resort housing assistance; and
    (iii) The method selected for providing last resort housing 
assistance is cost effective, considering all elements, which contribute 
to total program or project costs.
    (b) Basic rights of persons to be displaced. Notwithstanding any 
provision

[[Page 221]]

of this subpart, no person shall be required to move from a displacement 
dwelling unless comparable replacement housing is available to such 
person. No person may be deprived of any rights the person may have 
under the Uniform Act or this part. The Agency shall not require any 
displaced person to accept a dwelling provided by the Agency under these 
procedures (unless the Agency and the displaced person have entered into 
a contract to do so) in lieu of any acquisition payment or any 
relocation payment for which the person may otherwise be eligible.
    (c) Methods of providing comparable replacement housing. Agencies 
shall have broad latitude in implementing this subpart, but 
implementation shall be for reasonable cost, on a case-by-case basis 
unless an exception to case-by-case analysis is justified for an entire 
project.
    (1) The methods of providing replacement housing of last resort 
include, but are not limited to:
    (i) A replacement housing payment in excess of the limits set forth 
in Sec.  24.401 or Sec.  24.402. A replacement housing payment under 
this section may be provided in installments or in a lump sum at the 
Agency's discretion.
    (ii) Rehabilitation of and/or additions to an existing replacement 
dwelling.
    (iii) The construction of a new replacement dwelling.
    (iv) The provision of a direct loan, which requires regular 
amortization or deferred repayment. The loan may be unsecured or secured 
by the real property. The loan may bear interest or be interest-free.
    (v) The relocation and, if necessary, rehabilitation of a dwelling.
    (vi) The purchase of land and/or a replacement dwelling by the 
displacing Agency and subsequent sale or lease to, or exchange with a 
displaced person.
    (vii) The removal of barriers for persons with disabilities.
    (2) Under special circumstances, consistent with the definition of a 
comparable replacement dwelling, modified methods of providing 
replacement housing of last resort permit consideration of replacement 
housing based on space and physical characteristics different from those 
in the displacement dwelling (see appendix A, Sec.  24.404(c)), 
including upgraded, but smaller replacement housing that is decent, 
safe, and sanitary and adequate to accommodate individuals or families 
displaced from marginal or substandard housing with probable functional 
obsolescence. In no event, however, shall a displaced person be required 
to move into a dwelling that is not functionally equivalent in 
accordance with Sec.  24.2(a)(6)(ii) of this part.
    (3) The Agency shall provide assistance under this subpart to a 
displaced person who is not eligible to receive a replacement housing 
payment under Sec. Sec.  24.401 and 24.402 because of failure to meet 
the length of occupancy requirement when comparable replacement rental 
housing is not available at rental rates within the displaced person's 
financial means. (See Sec.  24.2(a)(6)(viii)(C).) Such assistance shall 
cover a period of 42 months.



                         Subpart F_Mobile Homes



Sec.  24.501  Applicability.

    (a) General. This subpart describes the requirements governing the 
provision of replacement housing payments to a person displaced from a 
mobile home and/or mobile home site who meets the basic eligibility 
requirements of this part. Except as modified by this subpart, such a 
displaced person is entitled to a moving expense payment in accordance 
with subpart D of this part and a replacement housing payment in 
accordance with subpart E of this part to the same extent and subject to 
the same requirements as persons displaced from conventional dwellings. 
Moving cost payments to persons occupying mobile homes are covered in 
Sec.  24.301(g)(1) through (g)(10).
    (b) Partial acquisition of mobile home park. The acquisition of a 
portion of a mobile home park property may leave a remaining part of the 
property that is not adequate to continue the operation of the park. If 
the Agency determines that a mobile home located in the remaining part 
of the property must be moved as a direct result of the project, the 
occupant of the mobile home shall be considered to be a displaced person 
who is entitled to relocation payments and other assistance under this 
part.

[[Page 222]]



Sec.  24.502  Replacement housing payment for 180-day mobile homeowner displaced from a mobile home, and/or from the acquired mobile home site.

    (a) Eligibility. An owner-occupant displaced from a mobile home or 
site is entitled to a replacement housing payment, not to exceed 
$22,500, under Sec.  24.401 if:
    (1) The person occupied the mobile home on the displacement site for 
at least 180 days immediately before:
    (i) The initiation of negotiations to acquire the mobile home, if 
the person owned the mobile home and the mobile home is real property;
    (ii) The initiation of negotiations to acquire the mobile home site 
if the mobile home is personal property, but the person owns the mobile 
home site; or
    (iii) The date of the Agency's written notification to the owner-
occupant that the owner is determined to be displaced from the mobile 
home as described in paragraphs (a)(3)(i) through (iv) of this section.
    (2) The person meets the other basic eligibility requirements at 
Sec.  24.401(a)(2); and
    (3) The Agency acquires the mobile home as real estate, or acquires 
the mobile home site from the displaced owner, or the mobile home is 
personal property but the owner is displaced from the mobile home 
because the Agency determines that the mobile home:
    (i) Is not, and cannot economically be made decent, safe, and 
sanitary;
    (ii) Cannot be relocated without substantial damage or unreasonable 
cost;
    (iii) Cannot be relocated because there is no available comparable 
replacement site; or
    (iv) Cannot be relocated because it does not meet mobile home park 
entrance requirements.
    (b) Replacement housing payment computation for a 180-day owner that 
is displaced from a mobile home. The replacement housing payment for an 
eligible displaced 180-day owner is computed as described at Sec.  
24.401(b) incorporating the following, as applicable:
    (1) If the Agency acquires the mobile home as real estate and/or 
acquires the owned site, the acquisition cost used to compute the price 
differential payment is the actual amount paid to the owner as just 
compensation for the acquisition of the mobile home, and/or site, if 
owned by the displaced mobile homeowner.
    (2) If the Agency does not purchase the mobile home as real estate 
but the owner is determined to be displaced from the mobile home and 
eligible for a replacement housing payment based on paragraph 
(a)(1)(iii) of this section, the eligible price differential payment for 
the purchase of a comparable replacement mobile home, is the lesser of 
the displaced mobile homeowner's net cost to purchase a replacement 
mobile home (i.e., purchase price of the replacement mobile home less 
trade-in or sale proceeds of the displacement mobile home); or, the cost 
of the Agency's selected comparable mobile home less the Agency's 
estimate of the salvage or trade-in value for the mobile home from which 
the person is displaced.
    (3) If a comparable replacement mobile home site is not available, 
the price differential payment shall be computed on the basis of the 
reasonable cost of a conventional comparable replacement dwelling.
    (c) Rental assistance payment for a 180-day owner-occupant that is 
displaced from a leased or rented mobile home site. If the displacement 
mobile home site is leased or rented, a displaced 180-day owner-occupant 
is entitled to a rental assistance payment computed as described in 
Sec.  24.402(b). This rental assistance payment may be used to lease a 
replacement site; may be applied to the purchase price of a replacement 
site; or may be applied, with any replacement housing payment 
attributable to the mobile home, to the purchase of a replacement mobile 
home or conventional decent, safe and sanitary dwelling.
    (d) Owner-occupant not displaced from the mobile home. If the Agency 
determines that a mobile home is personal property and may be relocated 
to a comparable replacement site, but the owner-occupant elects not to 
do so, the owner is not entitled to a replacement housing payment for 
the purchase of a replacement mobile home. However, the owner is 
eligible for moving costs described at Sec.  24.301 and any replacement 
housing payment for the purchase or rental of a comparable site as

[[Page 223]]

described in this section or Sec.  24.503 as applicable.



Sec.  24.503  Replacement housing payment for 90-day mobile home occupants.

    A displaced tenant or owner-occupant of a mobile home and/or site is 
eligible for a replacement housing payment, not to exceed $5,250, under 
Sec.  24.402 if:
    (a) The person actually occupied the displacement mobile home on the 
displacement site for at least 90 days immediately prior to the 
initiation of negotiations;
    (b) The person meets the other basic eligibility requirements at 
Sec.  24.402(a); and
    (c) The Agency acquires the mobile home and/or mobile home site, or 
the mobile home is not acquired by the Agency but the Agency determines 
that the occupant is displaced from the mobile home because of one of 
the circumstances described at Sec.  24.502(a)(3).



                         Subpart G_Certification



Sec.  24.601  Purpose.

    This subpart permits a State Agency to fulfill its responsibilities 
under the Uniform Act by certifying that it shall operate in accordance 
with State laws and regulations which shall accomplish the purpose and 
effect of the Uniform Act, in lieu of providing the assurances required 
by Sec.  24.4 of this part.



Sec.  24.602  Certification application.

    An Agency wishing to proceed on the basis of a certification may 
request an application for certification from the Lead Agency Director, 
Office of Real Estate Services, HEPR-1, Federal Highway Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The completed 
application for certification must be approved by the governor of the 
State, or the governor's designee, and must be coordinated with the 
Federal funding Agency, in accordance with application procedures.

[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



Sec.  24.603  Monitoring and corrective action.

    (a) The Federal Lead Agency shall, in coordination with other 
Federal Agencies, monitor from time to time State Agency implementation 
of programs or projects conducted under the certification process and 
the State Agency shall make available any information required for this 
purpose.
    (b) The Lead Agency may require periodic information or data from 
affected Federal or State Agencies.
    (c) A Federal Agency may, after consultation with the Lead Agency, 
and notice to and consultation with the governor, or his or her 
designee, rescind any previous approval provided under this subpart if 
the certifying State Agency fails to comply with its certification or 
with applicable State law and regulations. The Federal Agency shall 
initiate consultation with the Lead Agency at least 30 days prior to any 
decision to rescind approval of a certification under this subpart. The 
Lead Agency will also inform other Federal Agencies, which have accepted 
a certification under this subpart from the same State Agency, and will 
take whatever other action that may be appropriate.
    (d) Section 103(b)(2) of the Uniform Act, as amended, requires that 
the head of the Lead Agency report biennially to the Congress on State 
Agency implementation of section 103. To enable adequate preparation of 
the prescribed biennial report, the Lead Agency may require periodic 
information or data from affected Federal or State Agencies.



           Sec. Appendix A to Part 24--Additional Information

    This appendix provides additional information to explain the intent 
of certain provisions of this part.

                           Subpart A--General

    Section 24.2 Definitions and Acronyms
    Section 24.2(a)(6) Definition of comparable replacement dwelling. 
The requirement in Sec.  24.2(a)(6)(ii) that a comparable replacement 
dwelling be ``functionally equivalent'' to the displacement dwelling 
means that it must perform the same function, and provide the same 
utility. While it need not possess every feature of the displacement 
dwelling, the principal features must be present.

[[Page 224]]

    For example, if the displacement dwelling contains a pantry and a 
similar dwelling is not available, a replacement dwelling with ample 
kitchen cupboards may be acceptable. Insulated and heated space in a 
garage might prove an adequate substitute for basement workshop space. A 
dining area may substitute for a separate dining room. Under some 
circumstances, attic space could substitute for basement space for 
storage purposes, and vice versa.
    Only in unusual circumstances may a comparable replacement dwelling 
contain fewer rooms or, consequentially, less living space than the 
displacement dwelling. Such may be the case when a decent, safe, and 
sanitary replacement dwelling (which by definition is ``adequate to 
accommodate'' the displaced person) may be found to be ``functionally 
equivalent'' to a larger but very run-down substandard displacement 
dwelling. Another example is when a displaced person accepts an offer of 
government housing assistance and the applicable requirements of such 
housing assistance program require that the displaced person occupy a 
dwelling that has fewer rooms or less living space than the displacement 
dwelling.
    Section 24.2(a)(6)(vii). The definition of comparable replacement 
dwelling requires that a comparable replacement dwelling for a person 
who is not receiving assistance under any government housing program 
before displacement must be currently available on the private market 
without any subsidy under a government housing program.
    Section 24.2(a)(6)(ix). A public housing unit may qualify as a 
comparable replacement dwelling only for a person displaced from a 
public housing unit. A privately owned dwelling with a housing program 
subsidy tied to the unit may qualify as a comparable replacement 
dwelling only for a person displaced from a similarly subsidized unit or 
public housing.
    A housing program subsidy that is paid to a person (not tied to the 
building), such as a HUD Section 8 Housing Voucher Program, may be 
reflected in an offer of a comparable replacement dwelling to a person 
receiving a similar subsidy or occupying a privately owned subsidized 
unit or public housing unit before displacement.
    However, nothing in this part prohibits an Agency from offering, or 
precludes a person from accepting, assistance under a government housing 
program, even if the person did not receive similar assistance before 
displacement. However, the Agency is obligated to inform the person of 
his or her options under this part. (If a person accepts assistance 
under a government housing assistance program, the rules of that program 
governing the size of the dwelling apply, and the rental assistance 
payment under Sec.  24.402 would be computed on the basis of the 
person's actual out-of-pocket cost for the replacement housing.)
    Section 24.2(a)(8)(ii) Decent, Safe and Sanitary. Many local housing 
and occupancy codes require the abatement of deteriorating paint, 
including lead-based paint and lead-based paint dust, in protecting the 
public health and safety. Where such standards exist, they must be 
honored. Even where local law does not mandate adherence to such 
standards, it is strongly recommended that they be considered as a 
matter of public policy.
    Section 24.2(a)(8)(vii) Persons with a disability. Reasonable 
accommodation of a displaced person with a disability at the replacement 
dwelling means the Agency is required to address persons with a physical 
impairment that substantially limits one or more of the major life 
activities. In these situations, reasonable accommodation should include 
the following at a minimum: Doors of adequate width; ramps or other 
assistance devices to traverse stairs and access bathtubs, shower 
stalls, toilets and sinks; storage cabinets, vanities, sink and mirrors 
at appropriate heights. Kitchen accommodations will include sinks and 
storage cabinets built at appropriate heights for access. The Agency 
shall also consider other items that may be necessary, such as physical 
modification to a unit, based on the displaced person's needs.
    Section 24.2(a)(9)(ii)(D) Persons not displaced. Paragraph 
(a)(9)(ii)(D) of this section recognizes that there are circumstances 
where the acquisition, rehabilitation or demolition of real property 
takes place without the intent or necessity that an occupant of the 
property be permanently displaced. Because such occupants are not 
considered ``displaced persons'' under this part, great care must be 
exercised to ensure that they are treated fairly and equitably. For 
example, if the tenant-occupant of a dwelling will not be displaced, but 
is required to relocate temporarily in connection with the project, the 
temporarily occupied housing must be decent, safe, and sanitary and the 
tenant must be reimbursed for all reasonable out-of-pocket expenses 
incurred in connection with the temporary relocation. These expenses may 
include moving expenses and increased housing costs during the temporary 
relocation. Temporary relocation should not extend beyond one year 
before the person is returned to his or her previous unit or location. 
The Agency must contact any residential tenant who has been temporarily 
relocated for a period beyond one year and offer all permanent 
relocation assistance. This assistance would be in addition to any 
assistance the person has already received for temporary relocation, and 
may not be reduced by the amount of any temporary relocation assistance.
    Similarly, if a business will be shut-down for any length of time 
due to rehabilitation

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of a site, it may be temporarily relocated and reimbursed for all 
reasonable out of pocket expenses or must be determined to be displaced 
at the Agency's option.
    Any person who disagrees with the Agency's determination that he or 
she is not a displaced person under this part may file an appeal in 
accordance with 49 CFR part 24.10 of this regulation.
    Section 24.2(a)(11) Dwelling Site. This definition ensures that the 
computation of replacement housing payments are accurate and realistic 
(a) when the dwelling is located on a larger than normal site, (b) when 
mixed-use properties are acquired, (c) when more than one dwelling is 
located on the acquired property, or (d) when the replacement dwelling 
is retained by an owner and moved to another site.
    Section 24.2(a)(14) Household income (exclusions). Household income 
for purposes of this regulation does not include program benefits that 
are not considered income by Federal law such as food stamps and the 
Women Infants and Children (WIC) program. For a more detailed list of 
income exclusions see Federal Highway Administration, Office of Real 
Estate Services Web site: http://www.fhwa.dot.gov/realestate/. (FR 4644-
N-16 page 20319 Updated.) If there is a question on whether or not to 
include income from a specific program contact the Federal Agency 
administering the program.
    Section 24(a)(15) Initiation of negotiations. This section provides 
a special definition for acquisition and displacements under Pub. L. 96-
510 or Superfund. The order of activities under Superfund may differ 
slightly in that temporary relocation may precede acquisition. Superfund 
is a program designed to clean up hazardous waste sites. When such a 
site is discovered, it may be necessary, in certain limited 
circumstances, to alert individual owners and tenants to potential 
health or safety threats and to offer to temporarily relocate them while 
additional information is gathered. If a decision is later made to 
permanently relocate such persons, those who had been temporarily 
relocated under Superfund authority would no longer be on site when a 
formal, written offer to acquire the property was made, and thus would 
lose their eligibility for a replacement housing payment. In order to 
prevent this unfair outcome, we have provided a definition of initiation 
of negotiation, which is based on the date the Federal Government offers 
to temporarily relocate an owner or tenant from the subject property.
    Section 24.2(a)(15)(iv) Initiation of negotiations (Tenants.) 
Tenants who occupy property that may be acquired amicably, without 
recourse to the use of the power of eminent domain, must be fully 
informed as to their eligibility for relocation assistance. This 
includes notifying such tenants of their potential eligibility when 
negotiations are initiated, notifying them if they become fully 
eligible, and, in the event the purchase of the property will not occur, 
notifying them that they are no longer eligible for relocation benefits. 
If a tenant is not readily accessible, as the result of a disaster or 
emergency, the Agency must make a good faith effort to provide these 
notifications and document its efforts in writing.
    Section 24.2(a)(17) Mobile home. The following examples provide 
additional guidance on the types of mobile homes and manufactured 
housing that can be found acceptable as comparable replacement dwellings 
for persons displaced from mobile homes. A recreational vehicle that is 
capable of providing living accommodations may be considered a 
replacement dwelling if the following criteria are met: the recreational 
vehicle is purchased and occupied as the ``primary'' place of residence; 
it is located on a purchased or leased site and connected to or have 
available all necessary utilities for functioning as a housing unit on 
the date of the displacing Agency's inspection; and, the dwelling, as 
sited, meets all local, State, and Federal requirements for a decent, 
safe and sanitary dwelling. (The regulations of some local jurisdictions 
will not permit the consideration of these vehicles as decent, safe and 
sanitary dwellings. In those cases, the recreational vehicle will not 
qualify as a replacement dwelling.)
    For HUD programs, mobile home is defined as ``a structure, 
transportable in one or more sections, which, in the traveling mode, is 
eight body feet or more in width or forty body feet or more in length, 
or, when erected on site, is three hundred or more square feet, and 
which is built on a permanent chassis and designed to be used as a 
dwelling with or without a permanent foundation when connected to the 
required utilities and includes the plumbing, heating, air-conditioning, 
and electrical systems contained therein; except that such terms shall 
include any structure which meets all the requirements of this paragraph 
except the size requirements and with respect to which the manufacturer 
voluntarily files a certification required by the Secretary of HUD and 
complies with the standards established under the National Manufactured 
Housing Construction and Safety Standards Act, provided by Congress in 
the original 1974 Manufactured Housing Act.'' In 1979 the term ``mobile 
home'' was changed to ``manufactured home.'' For purposes of this 
regulation, the terms mobile home and manufactured home are synonymous.
    When assembled, manufactured homes built after 1976 contain no less 
than 320 square feet. They may be single or multi-sectioned units when 
installed. Their designation as personalty or realty will be determined 
by State law. When determined to be

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realty, most are eligible for conventional mortgage financing.
    The 1976 HUD standards distinguish manufactured homes from factory-
built ``modular homes'' as well as conventional or ``stick-built'' 
homes. Both of these types of housing are required to meet State and 
local construction codes.
    Section 24.3 No Duplication of Payments. This section prohibits an 
Agency from making a payment to a person under these regulations that 
would duplicate another payment the person receives under Federal, 
State, or local law. The Agency is not required to conduct an exhaustive 
search for such other payments; it is only required to avoid creating a 
duplication based on the Agency's knowledge at the time a payment is 
computed.

                  Subpart B--Real Property Acquisition

    Federal Agencies may find that, for Federal eminent domain purposes, 
the terms ``fair market value'' (as used throughout this subpart) and 
``market value,'' which may be the more typical term in private 
transactions, may be synonymous.
    Section 24.101(a) Direct Federal program or project. All 49 CFR Part 
24 Subpart B (real property acquisition) requirements apply to all 
direct acquisitions for Federal programs and projects by Federal 
Agencies, except for acquisitions undertaken by the Tennessee Valley 
Authority or the Rural Utilities Service. There are no exceptions for 
``voluntary transactions.''
    Section 24.101(b)(1)(i). The term ``general geographic area'' is 
used to clarify that the ``geographic area'' is not to be construed to 
be a small, limited area.
    Sections 24.101(b)(1)(iv) and (2)(ii). These sections provide that, 
for programs and projects receiving Federal financial assistance 
described in Sec. Sec.  24.101(b)(1) and (2), Agencies are to inform the 
owner(s) in writing of the Agency's estimate of the fair market value 
for the property to be acquired.
    While this part does not require an appraisal for these 
transactions, Agencies may still decide that an appraisal is necessary 
to support their determination of the market value of these properties, 
and, in any event, Agencies must have some reasonable basis for their 
determination of market value. In addition, some of the concepts 
inherent in Federal Program appraisal practice are appropriate for these 
estimates. It would be appropriate for Agencies to adhere to project 
influence restrictions, as well as guard against discredited ``public 
interest value'' valuation concepts.
    After an Agency has established an amount it believes to be the 
market value of the property and has notified the owner of this amount 
in writing, an Agency may negotiate freely with the owner in order to 
reach agreement. Since these transactions are voluntary, accomplished by 
a willing buyer and a willing seller, negotiations may result in 
agreement for the amount of the original estimate, an amount exceeding 
it, or for a lesser amount. Although not required by the regulations, it 
would be entirely appropriate for Agencies to apply the administrative 
settlement concept and procedures in Sec.  24.102(i) to negotiate 
amounts that exceed the original estimate of market value. Agencies 
shall not take any coercive action in order to reach agreement on the 
price to be paid for the property.
    Section 24.101(c) Less-than-full-fee interest in real property. This 
provision provides a benchmark beyond which the requirements of the 
subpart clearly apply to leases.
    Section 24.102(c)(2) Appraisal, waiver thereof, and invitation to 
owner. The purpose of the appraisal waiver provision is to provide 
Agencies a technique to avoid the costs and time delay associated with 
appraisal requirements for low-value, non-complex acquisitions. The 
intent is that non-appraisers make the waiver valuations, freeing 
appraisers to do more sophisticated work.
    The Agency employee making the determination to use the appraisal 
waiver process must have enough understanding of appraisal principles to 
be able to determine whether or not the proposed acquisition is low 
value and uncomplicated.
    Waiver valuations are not appraisals as defined by the Uniform Act 
and these regulations; therefore, appraisal performance requirements or 
standards, regardless of their source, are not required for waiver 
valuations by this rule. Since waiver valuations are not appraisals, 
neither is there a requirement for an appraisal review. However, the 
Agency must have a reasonable basis for the waiver valuation and an 
Agency official must still establish an amount believed to be just 
compensation to offer the property owner(s).
    The definition of ``appraisal'' in the Uniform Act and appraisal 
waiver provisions of the Uniform Act and these regulations are Federal 
law and public policy and should be considered as such when determining 
the impact of appraisal requirements levied by others.
    Section 24.102(d) Establishment of offer of just compensation. The 
initial offer to the property owner may not be less than the amount of 
the Agency's approved appraisal, but may exceed that amount if the 
Agency determines that a greater amount reflects just compensation for 
the property.
    Section 24.102(f) Basic negotiation procedures. An offer should be 
adequately presented to an owner, and the owner should be properly 
informed. Personal, face-to-face contact should take place, if feasible, 
but this section does not require such contact in all cases.

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    This section also provides that the property owner be given a 
reasonable opportunity to consider the Agency's offer and to present 
relevant material to the Agency. In order to satisfy this requirement, 
Agencies must allow owners time for analysis, research and development, 
and compilation of a response, including perhaps getting an appraisal. 
The needed time can vary significantly, depending on the circumstances, 
but thirty (30) days would seem to be the minimum time these actions can 
be reasonably expected to require. Regardless of project time pressures, 
property owners must be afforded this opportunity.
    In some jurisdictions, there is pressure to initiate formal eminent 
domain procedures at the earliest opportunity because completing the 
eminent domain process, including gaining possession of the needed real 
property, is very time consuming. These provisions are not intended to 
restrict this practice, so long as it does not interfere with the 
reasonable time that must be provided for negotiations, described above, 
and the Agencies adhere to the Uniform Act ban on coercive action 
(section 301(7) of the Uniform Act).
    If the owner expresses intent to provide an appraisal report, 
Agencies are encouraged to provide the owner and/or his/her appraiser a 
copy of Agency appraisal requirements and inform them that their 
appraisal should be based on those requirements.
    Section 24.102(i) Administrative settlement. This section provides 
guidance on administrative settlement as an alternative to judicial 
resolution of a difference of opinion on the value of a property, in 
order to avoid unnecessary litigation and congestion in the courts.
    All relevant facts and circumstances should be considered by an 
Agency official delegated this authority. Appraisers, including review 
appraisers, must not be pressured to adjust their estimate of value for 
the purpose of justifying such settlements. Such action would invalidate 
the appraisal process.
    Section 24.102(j) Payment before taking possession. It is intended 
that a right-of-entry for construction purposes be obtained only in the 
exceptional case, such as an emergency project, when there is no time to 
make an appraisal and purchase offer and the property owner is agreeable 
to the process.
    Section 24.102(m) Fair rental. Section 301(6) of the Uniform Act 
limits what an Agency may charge when a former owner or previous 
occupant of a property is permitted to rent the property for a short 
term or when occupancy is subject to termination by the Agency on short 
notice. Such rent may not exceed ``the fair rental value of the property 
to a short-term occupier.'' Generally, the Agency's right to terminate 
occupancy on short notice (whether or not the renter also has that 
right) supports the establishment of a lesser rental than might be found 
in a longer, fixed-term situation.
    Section 24.102(n) Conflict of interest. The overall objective is to 
minimize the risk of fraud while allowing Agencies to operate as 
efficiently as possible. There are three parts to this provision.
    The first provision is the prohibition against having any interest 
in the real property being valued by the appraiser (for an appraisal), 
the valuer (for a waiver estimate) or the review appraiser (for an 
appraisal review.)
    The second provision is that no person functioning as a negotiator 
for a project or program can supervise or formally evaluate the 
performance of any appraiser or review appraiser performing appraisal or 
appraisal review work for that project or program. The intent of this 
provision is to ensure appraisal/valuation independence and to prevent 
inappropriate influence. It is not intended to prevent Agencies from 
providing appraisers/valuers with appropriate project information and 
participating in determining the scope of work for the appraisal or 
valuation. For a program or project receiving Federal financial 
assistance, the Federal funding Agency may waive this requirement if it 
would create a hardship for the Agency. The intent is to accommodate 
Federal-aid recipients that have a small staff where this provision 
would be unworkable.
    The third provision is to minimize situations where administrative 
costs exceed acquisition costs. Section 24.102(n) also provides that the 
same person may prepare a valuation estimate (including an appraisal) 
and negotiate that acquisition, if the valuation estimate amount is 
$10,000 or less. However, it should be noted that this exception for 
properties valued at $10,000 or less is not mandatory, e.g., Agencies 
are not required to use those who prepare a waiver valuation or 
appraisal of $10,000 or less to negotiate the acquisition, and, all 
appraisals must be reviewed in accordance with Sec.  24.104. This 
includes appraisals of real property valued at $10,000 or less.
    Section 24.103 Criteria for Appraisals. The term ``requirements'' is 
used throughout this section to avoid confusion with The Appraisal 
Foundation's Uniform Standards of Professional Appraisal Practice 
(USPAP) ``standards.'' Although this section discusses appraisal 
requirements, the definition of ``appraisal'' itself at Sec.  24.2(a)(3) 
includes appraisal performance requirements that are an inherent part of 
this section.
    The term ``Federal and federally-assisted program or project'' is 
used to better identify the type of appraisal practices that are to be 
referenced and to differentiate them from the private sector, especially 
mortgage lending, appraisal practice.

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    Section 24.103(a) Appraisal requirements. The first sentence 
instructs readers that requirements for appraisals for Federal and 
federally-assisted programs or projects are located in 49 CFR part 24. 
These are the basic appraisal requirements for Federal and federally-
assisted programs or projects. However, Agencies may enhance and expand 
on them, and there may be specific project or program legislation that 
references other appraisal requirements.
    These appraisal requirements are necessarily designed to comply with 
the Uniform Act and other Federal eminent domain based appraisal 
requirements. They are also considered to be consistent with Standards 
Rules 1, 2, and 3 of the 2004 edition of the USPAP. Consistency with 
USPAP has been a feature of these appraisal requirements since the 
beginning of USPAP. This ``consistent'' relationship was more formally 
recognized in OMB Bulletin 92-06. While these requirements are 
considered consistent with USPAP, neither can supplant the other; their 
provisions are neither identical, nor interchangeable. Appraisals 
performed for Federal and federally-assisted real property acquisition 
must follow the requirements in this regulation. Compliance with any 
other appraisal requirements is not the purview of this regulation. An 
appraiser who is committed to working within the bounds of USPAP should 
recognize that compliance with both USPAP and these requirements may be 
achieved by using the Supplemental Standards Rule and the Jurisdictional 
Exception Rule of USPAP, where applicable.
    The term ``scope of work'' defines the general parameters of the 
appraisal. It reflects the needs of the Agency and the requirements of 
Federal and federally-assisted program appraisal practice. It should be 
developed cooperatively by the assigned appraiser and an Agency official 
who is competent to both represent the Agency's needs and respect valid 
appraisal practice. The scope of work statement should include the 
purpose and/or function of the appraisal, a definition of the estate 
being appraised, and if it is fair market value, its applicable 
definition, and the assumptions and limiting conditions affecting the 
appraisal. It may include parameters for the data search and 
identification of the technology, including approaches to value, to be 
used to analyze the data. The scope of work should consider the specific 
requirements in 49 CFR 24.103(a)(2)(i) through (v) and address them as 
appropriate.
    Section 24.103(a)(1). The appraisal report should identify the items 
considered in the appraisal to be real property, as well as those 
identified as personal property.
    Section 24.103(a)(2). All relevant and reliable approaches to value 
are to be used. However, where an Agency determines that the sales 
comparison approach will be adequate by itself and yield credible 
appraisal results because of the type of property being appraised and 
the availability of sales data, it may limit the appraisal assignment to 
the sales comparison approach. This should be reflected in the scope of 
work.
    Section 24.103(b) Influence of the project on just compensation. As 
used in this section, the term ``project'' means an undertaking which is 
planned, designed, and intended to operate as a unit.
    When the public is aware of the proposed project, project area 
property values may be affected. Therefore, property owners should not 
be penalized because of a decrease in value caused by the proposed 
project nor reap a windfall at public expense because of increased value 
created by the proposed project.
    Section 24.103(d)(1). The appraiser and review appraiser must each 
be qualified and competent to perform the appraisal and appraisal review 
assignments, respectively. Among other qualifications, State licensing 
or certification and professional society designations can help provide 
an indication of an appraiser's abilities.
    Section 24.104 Review of appraisals. The term ``review appraiser'' 
is used rather than ``reviewing appraiser,'' to emphasize that ``review 
appraiser'' is a separate specialty and not just an appraiser who 
happens to be reviewing an appraisal. Federal Agencies have long held 
the perspective that appraisal review is a unique skill that, while it 
certainly builds on appraisal skills, requires more. The review 
appraiser should possess both appraisal technical abilities and the 
ability to be the two-way bridge between the Agency's real property 
valuation needs and the appraiser.
    Agency review appraisers typically perform a role greater than 
technical appraisal review. They are often involved in early project 
development. Later they may be involved in devising the scope of work 
statements and participate in making appraisal assignments to fee and/or 
staff appraisers. They are also mentors and technical advisors, 
especially on Agency policy and requirements, to appraisers, both staff 
and fee. Additionally, review appraisers are frequently technical 
advisors to other Agency officials.
    Section 24.104(a). This paragraph states that the review appraiser 
is to review the appraiser's presentation and analysis of market 
information and that it is to be reviewed against Sec.  24.103 and other 
applicable requirements, including, to the extent appropriate, the 
Uniform Appraisal Standards for Federal Land Acquisition. The appraisal 
review is to be a technical review by an appropriately qualified review 
appraiser. The qualifications of the review appraiser and the level of 
explanation of the basis for the review appraiser's recommended (or 
approved) value depend on the complexity of the appraisal

[[Page 229]]

problem. If the initial appraisal submitted for review is not 
acceptable, the review appraiser is to communicate and work with the 
appraiser to the greatest extent possible to facilitate the appraiser's 
development of an acceptable appraisal.
    In doing this, the review appraiser is to remain in an advisory 
role, not directing the appraisal, and retaining objectivity and options 
for the appraisal review itself.
    If the Agency intends that the staff review appraiser approve the 
appraisal (as the basis for the establishment of the amount believed to 
be just compensation), or establish the amount the Agency believes is 
just compensation, she/he must be specifically authorized by the Agency 
to do so. If the review appraiser is not specifically authorized to 
approve the appraisal (as the basis for the establishment of the amount 
believed to be just compensation), or establish the amount believed to 
be just compensation, that authority remains with another Agency 
official.
    Section 24.104(b). In developing an independent approved or 
recommended value, the review appraiser may reference any acceptable 
resource, including acceptable parts of any appraisal, including an 
otherwise unacceptable appraisal. When a review appraiser develops an 
independent value, while retaining the appraisal review, that 
independent value also becomes the approved appraisal of the fair market 
value for Uniform Act Section 301(3) purposes. It is within Agency 
discretion to decide whether a second review is needed if the first 
review appraiser establishes a value different from that in the 
appraisal report or reports on the property.
    Section 24.104(c). Before acceptance of an appraisal, the review 
appraiser must determine that the appraiser's documentation, including 
valuation data and analysis of that data, demonstrates the soundness of 
the appraiser's opinion of value. For the purposes of this part, an 
acceptable appraisal is any appraisal that, on its own, meets the 
requirements of Sec.  24.103. An approved appraisal is the one 
acceptable appraisal that is determined to best fulfill the requirement 
to be the basis for the amount believed to be just compensation. 
Recognizing that appraisal is not an exact science, there may be more 
than one acceptable appraisal of a property, but for the purposes of 
this part, there can be only one approved appraisal.
    At the Agency's discretion, for a low value property requiring only 
a simple appraisal process, the review appraiser's recommendation (or 
approval), endorsing the appraiser's report, may be determined to 
satisfy the requirement for the review appraiser's signed report and 
certification.
    Section 24.106(b). Expenses incidental to transfer of title to the 
agency. Generally, the Agency is able to pay such incidental costs 
directly and, where feasible, is required to do so. In order to prevent 
the property owner from making unnecessary out-of-pocket expenditures 
and to avoid duplication of expenses, the property owner should be 
informed early in the acquisition process of the Agency's intent to make 
such arrangements. Such expenses must be reasonable and necessary.

               Subpart C--General Relocation Requirements

    Section 24.202 Applicability and Section 205(c) Services to be 
provided. In extraordinary circumstances, when a displaced person is not 
readily accessible, the Agency must make a good faith effort to comply 
with these sections and document its efforts in writing.
    Section 24.204 Availability of comparable replacement dwelling 
before displacement.
    Section 24.204(a) General. This provision requires that no one may 
be required to move from a dwelling without a comparable replacement 
dwelling having been made available. In addition, Sec.  24.204(a) 
requires that, ``where possible, three or more comparable replacement 
dwellings shall be made available.'' Thus, the basic standard for the 
number of referrals required under this section is three. Only in 
situations where three comparable replacement dwellings are not 
available (e.g., when the local housing market does not contain three 
comparable dwellings) may the Agency make fewer than three referrals.
    Section 24.205 Relocation assistance advisory services. Section 
24.205(c)(2)(ii)(D) emphasizes that if the comparable replacement 
dwellings are located in areas of minority concentration, minority 
persons should, if possible, also be given opportunities to relocate to 
replacement dwellings not located in such areas.
    Section 24.206 Eviction for cause. An eviction related to non-
compliance with a requirement related to carrying out a project (e.g., 
failure to move or relocate when instructed, or to cooperate in the 
relocation process) shall not negate a person's entitlement to 
relocation payments and other assistance set forth in this part.
    Section 24.207 General Requirements-Claims for relocation payments. 
Section 24.207(a) allows an Agency to make a payment for low cost or 
uncomplicated nonresidential moves without additional documentation, as 
long as the payment is limited to the amount of the lowest acceptable 
bid or estimate, as provided for in Sec.  24.301(d)(1).
    While Sec.  24.207(f) prohibits an Agency from proposing or 
requesting that a displaced person waive his or her rights or 
entitlements to relocation assistance and payments, an Agency may accept 
a written statement from the displaced person that states that they have 
chosen not to accept some or all of the payments or assistance to which 
they

[[Page 230]]

are entitled. Any such written statement must clearly show that the 
individual knows what they are entitled to receive (a copy of the Notice 
of Eligibility which was provided may serve as documentation) and their 
statement must specifically identify which assistance or payments they 
have chosen not to accept. The statement must be signed and dated and 
may not be coerced by the Agency.

           Subpart D--Payment for Moving and Related Expenses

    Section 24.301. Payment for Actual Reasonable Moving and Related 
Expenses.
    Section 24.301(e) Personal property only. Examples of personal 
property only moves might be: personal property that is located on a 
portion of property that is being acquired, but the business or 
residence will not be taken and can still operate after the acquisition; 
personal property that is located in a mini-storage facility that will 
be acquired or relocated; personal property that is stored on vacant 
land that is to be acquired.
    For a nonresidential personal property only move, the owner of the 
personal property has the options of moving the personal property by 
using a commercial mover or a self-move.
    If a question arises concerning the reasonableness of an actual cost 
move, the acquiring Agency may obtain estimates from qualified movers to 
use as the standard in determining the payment.
    Section 24.301 (g)(14)(i) and (ii). If the piece of equipment is 
operational at the acquired site, the estimated cost to reconnect the 
equipment shall be based on the cost to install the equipment as it 
currently exists, and shall not include the cost of code-required 
betterments or upgrades that may apply at the replacement site. As 
prescribed in the regulation, the allowable in-place value estimate 
(Sec.  24.301(g)(14)(i)) and moving cost estimate (Sec.  
24.301(g)(14)(ii)) must reflect only the ``as is'' condition and 
installation of the item at the displacement site. The in-place value 
estimate may not include costs that reflect code or other requirements 
that were not in effect at the displacement site; or include 
installation costs for machinery or equipment that is not operable or 
not installed at the displacement site.
    Section 24.301(g)(17) Searching expenses. In special cases where the 
displacing Agency determines it to be reasonable and necessary, certain 
additional categories of searching costs may be considered for 
reimbursement. These include those costs involved in investigating 
potential replacement sites and the time of the business owner, based on 
salary or earnings, required to apply for licenses or permits, zoning 
changes, and attendance at zoning hearings. Necessary attorney fees 
required to obtain such licenses or permits are also reimbursable. Time 
spent in negotiating the purchase of a replacement business site is also 
reimbursable based on a reasonable salary or earnings rate. In those 
instances when such additional costs to investigate and acquire the site 
exceed $2,500, the displacing Agency may consider waiver of the cost 
limitation under the Sec.  24.7, waiver provision. Such a waiver should 
be subject to the approval of the Federal-funding Agency in accordance 
with existing delegation authority.
    Section 24.303(b) Professional Services. If a question should arise 
as to what is a ``reasonable hourly rate,'' the Agency should compare 
the rates of other similar professional providers in that area.
    Section 24.305 Fixed Payment for Moving Expenses--Nonresidential 
Moves.
    Section 24.305(d) Nonprofit organization. Gross revenues may include 
membership fees, class fees, cash donations, tithes, receipts from sales 
or other forms of fund collection that enables the nonprofit 
organization to operate. Administrative expenses are those for 
administrative support such as rent, utilities, salaries, advertising, 
and other like items as well as fundraising expenses. Operating expenses 
for carrying out the purposes of the nonprofit organization are not 
included in administrative expenses. The monetary receipts and expense 
amounts may be verified with certified financial statements or financial 
documents required by public Agencies.
    Section 24.305(e) Average annual net earnings of a business or farm 
operation. If the average annual net earnings of the displaced business, 
farm, or nonprofit organization are determined to be less than $1,000, 
even $0 or a negative amount, the minimum payment of $1,000 shall be 
provided.
    Section 24.306 Discretionary Utility Relocation Payments. Section 
24.306(c) describes the issues that the Agency and the utility facility 
owner must agree to in determining the amount of the relocation payment. 
To facilitate and aid in reaching such agreement, the practices in the 
Federal Highway Administration regulation, 23 CFR part 645, subpart A, 
Utility Relocations, Adjustments and Reimbursement, should be followed.

                 Subpart E--Replacement Housing Payments

    Section 24.401 Replacement Housing Payment for 180-day Homeowner-
Occupants.
    Section 24.401(a)(2). An extension of eligibility may be granted if 
some event beyond the control of the displaced person such as acute or 
life threatening illness, bad weather preventing the completion of 
construction, or physical modifications required for reasonable 
accommodation of a replacement dwelling, or other like circumstances 
causes a delay in occupying a decent, safe, and sanitary replacement 
dwelling.

[[Page 231]]

    Section 24.401(c)(2)(iii) Price differential. The provision in Sec.  
24.401(c)(2)(iii) to use the current fair market value for residential 
use does not mean the Agency must have the property appraised. Any 
reasonable method for arriving at the fair market value may be used.
    Section 24.401(d) Increased mortgage interest costs. The provision 
in Sec.  24.401(d) sets forth the factors to be used in computing the 
payment that will be required to reduce a person's replacement mortgage 
(added to the downpayment) to an amount which can be amortized at the 
same monthly payment for principal and interest over the same period of 
time as the remaining term on the displacement mortgages. This payment 
is commonly known as the ``buydown.''
    The Agency must know the remaining principal balance, the interest 
rate, and monthly principal and interest payments for the old mortgage 
as well as the interest rate, points and term for the new mortgage to 
compute the increased mortgage interest costs. If the combination of 
interest and points for the new mortgage exceeds the current prevailing 
fixed interest rate and points for conventional mortgages and there is 
no justification for the excessive rate, then the current prevailing 
fixed interest rate and points shall be used in the computations. 
Justification may be the unavailability of the current prevailing rate 
due to the amount of the new mortgage, credit difficulties, or other 
similar reasons.

                           Sample Computation
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Old Mortgage:
    Remaining Principal Balance..........................     $50,000
    Monthly Payment (principal and interest).............        $458.22
    Interest rate (percent)..............................           7
New Mortgage:
    Interest rate (percent)..............................          10
    Points...............................................           3
    Term (years).........................................          15
------------------------------------------------------------------------

    Remaining term of the old mortgage is determined to be 174 months. 
Determining, or computing, the actual remaining term is more reliable 
than using the data supplied by the mortgagee. However, if it is 
shorter, use the term of the new mortgage and compute the needed monthly 
payment.
    Amount to be financed to maintain monthly payments of $458.22 at 10% 
= $42,010.18.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Calculation:
    Remaining Principal Balance.........................      $50,000.00
    Minus Monthly Payment (principal and interest)......      -42,010.18
                                                         ---------------
    Increased mortgage interest costs...................        7,989.82
    3 points on $42,010.18..............................        1,260.31
                                                         ---------------
    Total buydown necessary to maintain payments at             9,250.13
     $458.22/month......................................
------------------------------------------------------------------------

    If the new mortgage actually obtained is less than the computed 
amount for a new mortgage ($42,010.18), the buydown shall be prorated 
accordingly. If the actual mortgage obtained in our example were 
$35,000, the buydown payment would be $7,706.57 ($35,000 divided by 
$42,010.18 = .8331; $9,250.13 multiplied by .83 = $7,706.57).
    The Agency is obligated to inform the displaced person of the 
approximate amount of this payment and that the displaced person must 
obtain a mortgage of at least the same amount as the old mortgage and 
for at least the same term in order to receive the full amount of this 
payment. The Agency must advise the displaced person of the interest 
rate and points used to calculate the payment.
    Section 24.402 Replacement Housing Payment for 90-day Occupants
    Section 24.402(b)(2) Low income calculation example. The Uniform Act 
requires that an eligible displaced person who rents a replacement 
dwelling is entitled to a rental assistance payment calculated in 
accordance with Sec.  24.402(b). One factor in this calculation is to 
determine if a displaced person is ``low income,'' as defined by the 
U.S. Department of Housing and Urban Development's annual survey of 
income limits for the Public Housing and Section 8 Programs. To make 
such a determination, the Agency must: (1) Determine the total number of 
members in the household (including all adults and children); (2) locate 
the appropriate table for income limits applicable to the Uniform Act 
for the state in which the displaced residence is located (found at: 
http://www.fhwa.dot.gov/realestate/ua/ualic.htm); (3) from the list of 
local jurisdictions shown, identify the appropriate county, Metropolitan 
Statistical Area (MSA)*, or Primary Metropolitan Statistical Area 
(PMSA)* in which the displacement property is located; and (4) locate 
the appropriate income limit in that jurisdiction for the size of this 
displaced person/family. The income limit must then be compared to the 
household income (Sec.  24.2(a)(15)) which is the gross annual income 
received by the displaced family, excluding income from any dependent 
children and full-time students under the age of 18. If the household 
income for the eligible displaced person/family is less than or equal to 
the income limit, the family is considered ``low income.'' For example:
    Tom and Mary Smith and their three children are being displaced. The 
information obtained from the family and verified by the Agency is as 
follows:
    Tom Smith, employed, earns $21,000/yr.
    Mary Smith, receives disability payments of $6,000/yr.
    Tom Smith Jr., 21, employed, earns $10,000/yr.

[[Page 232]]

    Mary Jane Smith, 17, student, has a paper route, earns $3,000/yr. 
(Income is not included because she is a dependent child and a full-time 
student under 18)
    Sammie Smith, 10, full-time student, no income.
    Total family income for 5 persons is: $21,000 + $6,000 + $10,000 = 
$37,000
    The displacement residence is located in the State of Maryland, 
Caroline County. The low income limit for a 5 person household is: 
$47,450. (2004 Income Limits)
    This household is considered ``low income.''
    * A complete list of counties and towns included in the identified 
MSAs and PMSAs can be found under the bulleted item ``Income Limit Area 
Definition'' posted on the FHWA's Web site at: http://www.fhwa.dot.gov/
realestate/ua/ualic.htm.
    Section 24.402(c) Downpayment assistance. The downpayment assistance 
provisions in Sec.  24.402(c) limit such assistance to the amount of the 
computed rental assistance payment for a tenant or an eligible 
homeowner. It does, however, provide the latitude for Agency discretion 
in offering downpayment assistance that exceeds the computed rental 
assistance payment, up to the $5,250 statutory maximum. This does not 
mean, however, that such Agency discretion may be exercised in a 
selective or discriminatory fashion. The displacing Agency should 
develop a policy that affords equal treatment for displaced persons in 
like circumstances and this policy should be applied uniformly 
throughout the Agency's programs or projects.
    For the purpose of this section, should the amount of the rental 
assistance payment exceed the purchase price of the replacement 
dwelling, the payment would be limited to the cost of the dwelling.
    Section 24.404 Replacement Housing of Last Resort.
    Section 24.404(b) Basic rights of persons to be displaced. This 
paragraph affirms the right of a 180-day homeowner-occupant, who is 
eligible for a replacement housing payment under Sec.  24.401, to a 
reasonable opportunity to purchase a comparable replacement dwelling. 
However, it should be read in conjunction with the definition of ``owner 
of a dwelling'' at Sec.  24.2(a)(20). The Agency is not required to 
provide persons owning only a fractional interest in the displacement 
dwelling a greater level of assistance to purchase a replacement 
dwelling than the Agency would be required to provide such persons if 
they owned fee simple title to the displacement dwelling. If such 
assistance is not sufficient to buy a replacement dwelling, the Agency 
may provide additional purchase assistance or rental assistance.
    Section 24.404(c) Methods of providing comparable replacement 
housing. This Section emphasizes the use of cost effective means of 
providing comparable replacement housing. The term ``reasonable cost'' 
is used to highlight the fact that while innovative means to provide 
housing are encouraged, they should be cost-effective. Section 
24.404(c)(2) permits the use of last resort housing, in special cases, 
which may involve variations from the usual methods of obtaining 
comparability. However, such variation should never result in a lowering 
of housing standards nor should it ever result in a lower quality of 
living style for the displaced person. The physical characteristics of 
the comparable replacement dwelling may be dissimilar to those of the 
displacement dwelling but they may never be inferior.
    One example might be the use of a new mobile home to replace a very 
substandard conventional dwelling in an area where comparable 
conventional dwellings are not available.
    Another example could be the use of a superior, but smaller, decent, 
safe and sanitary dwelling to replace a large, old substandard dwelling, 
only a portion of which is being used as living quarters by the 
occupants and no other large comparable dwellings are available in the 
area.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



           Sec. Appendix B to Part 24--Statistical Report Form

    This Appendix sets forth the statistical information collected from 
Agencies in accordance with Sec.  24.9(c).
    General
    1. Report coverage. This report covers all relocation and real 
property acquisition activities under a Federal or a federally-assisted 
project or program subject to the provisions of the Uniform Act. If the 
exact numbers are not easily available, an Agency may provide what it 
believes to be a reasonable estimate.
    2. Report period. Activities shall be reported on a Federal fiscal 
year basis, i.e., October 1 through September 30.
    3. Where and when to submit report. Submit a copy of this report to 
the lead Agency as soon as possible after September 30, but NOT LATER 
THAN NOVEMBER 15. Lead Agency address: Federal Highway Administration, 
Office of Real Estate Services (HEPR), 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    4. How to report relocation payments. The full amount of a 
relocation payment shall be reported as if disbursed in the year during 
which the claim was approved, regardless of whether the payment is to be 
paid in installments.
    5. How to report dollar amounts. Round off all money entries in 
Parts of this section A, B and C to the nearest dollar.

[[Page 233]]

    6. Regulatory references. The references in Parts A, B, C and D of 
this section indicate the subpart of the regulations pertaining to the 
requested information.

         Part A. Real property acquisition under The Uniform Act

    Line 1. Report all parcels acquired during the report year where 
title or possession was vested in the Agency during the reporting 
period. The parcel count reported should relate to ownerships and not to 
the number of parcels of different property interests (such as fee, 
perpetual easement, temporary easement, etc.) that may have been part of 
an acquisition from one owner. For example, an acquisition from a 
property that includes a fee simple parcel, a perpetual easement parcel, 
and a temporary easement parcel should be reported as 1 parcel not 3 
parcels. (Include parcels acquired without Federal financial assistance, 
if there was or will be Federal financial assistance in other phases of 
the project or program.)
    Line 2. Report the number of parcels reported on Line 1 that were 
acquired by condemnation. Include those parcels where compensation for 
the property was paid, deposited in court, or otherwise made available 
to a property owner pursuant to applicable law in order to vest title or 
possession in the Agency through condemnation authority.
    Line 3. Report the number of parcels in Line 1 acquired through 
administrative settlement where the purchase price for the property 
exceeded the amount offered as just compensation and efforts to 
negotiate an agreement at that amount have failed.
    Line 4. Report the total of the amounts paid, deposited in court, or 
otherwise made available to a property owner pursuant to applicable law 
in order to vest title or possession in the Agency in Line 1.

          Part B. Residential Relocation Under the Uniform Act

    Line 5. Report the number of households who were permanently 
displaced during the fiscal year by project or program activities and 
moved to their replacement dwelling. The term ``households'' includes 
all families and individuals. A family shall be reported as ``one'' 
household, not by the number of people in the family unit.
    Line 6. Report the total amount paid for residential moving expenses 
(actual expense and fixed payment).
    Line 7. Report the total amount paid for residential replacement 
housing payments including payments for replacement housing of last 
resort provided pursuant to Sec.  24.404 of this part.
    Line 8. Report the number of households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities and moved to their replacement dwelling as part of last 
resort housing assistance.
    Line 9. Report the number of tenant households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities, and who purchased and moved to their replacement dwelling 
using a downpayment assistance payment under this part.
    Line 10. Report the total sum costs of residential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 6 and 7.

         Part C. Nonresidential Relocation Under the Uniform Act

    Line 11. Report the number of businesses, nonprofit organizations, 
and farms who were permanently displaced during the fiscal year by 
project or program activities and moved to their replacement location. 
This includes businesses, nonprofit organizations, and farms, that upon 
displacement, discontinued operations.
    Line 12. Report the total amount paid for nonresidential moving 
expenses (actual expense and fixed payment.)
    Line 13. Report the total amount paid for nonresidential 
reestablishment expenses.
    Line 14. Report the total sum costs of nonresidential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 12 and 13.

                       Part D. Relocation Appeals

    Line 15. Report the total number of relocation appeals filed during 
the fiscal year by aggrieved persons (residential and nonresidential).

[[Page 234]]

[GRAPHIC] [TIFF OMITTED] TR04JA05.004


[[Page 235]]



[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



PART 25_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
25.100 Purpose and effective date.
25.105 Definitions.
25.110 Remedial and affirmative action and self-evaluation.
25.115 Assurance required.
25.120 Transfers of property.
25.125 Effect of other requirements.
25.130 Effect of employment opportunities.
25.135 Designation of responsible employee and adoption of grievance 
          procedures.
25.140 Dissemination of policy.

                           Subpart B_Coverage

25.200 Application.
25.205 Educational institutions and other entities controlled by 
          religious organizations.
25.210 Military and merchant marine educational institutions.
25.215 Membership practices of certain organizations.
25.220 Admissions.
25.225 Educational institutions eligible to submit transition plans.
25.230 Transition plans.
25.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

25.300 Admission.
25.305 Preference in admission.
25.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

25.400 Education programs or activities.
25.405 Housing.
25.410 Comparable facilities.
25.415 Access to course offerings.
25.420 Access to schools operated by LEAs.
25.425 Counseling and use of appraisal and counseling materials.
25.430 Financial assistance.
25.435 Employment assistance to students.
25.440 Health and insurance benefits and services.
25.445 Marital or parental status.
25.450 Athletics.
25.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

25.500 Employment.
25.505 Employment criteria.
25.510 Recruitment.
25.515 Compensation.
25.520 Job classification and structure.
25.525 Fringe benefits.
25.530 Marital or parental status.
25.535 Effect of state or local law or other requirements.
25.540 Advertising.
25.545 Pre-employment inquiries.
25.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

25.600 Notice of covered programs.
25.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52894, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  25.100  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.  25.105  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,

[[Page 236]]

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 Director, Departmental Office of 
Civil Rights.
    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

[[Page 237]]

technical field, whether or not the school or institution offers 
certificates, diplomas, or degrees and whether or not it offers full-
time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
25.100 through 25.605.
    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.  25.110  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.  25.115  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

[[Page 238]]

the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec.  25.110(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.  25.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  25.205 through 25.235(a).



Sec.  25.125  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.

[[Page 239]]



Sec.  25.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec.  25.135  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.  25.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  25.300 through 25.310 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.  25.135, 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.

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                           Subpart B_Coverage



Sec.  25.200  Application.

    Except as provided in Sec. Sec.  25.205 through 25.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec.  25.205  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.  25.210  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.  25.215  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.  25.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  25.225 and 25.230, and Sec. Sec.  25.300 through 
25.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  25.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  25.300 
through 25.310 apply to each recipient. A recipient to which Sec. Sec.  
25.300 through 25.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  25.300 through 
25.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  25.300 through 25.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  25.300 through 25.310 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.  25.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  25.300 through 25.310 apply that:

[[Page 241]]

    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  25.300 through 
25.310.



Sec.  25.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  25.225 
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.  25.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  25.300 through 
25.310 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.  25.225 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.  25.235  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;

[[Page 242]]

    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (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.  25.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be

[[Page 243]]

subjected to discrimination in admission, by any recipient to which 
Sec. Sec.  25.300 through Sec. Sec.  25.310 apply, except as provided in 
Sec. Sec.  25.225 and Sec. Sec.  25.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  25.300 through 25.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  25.300 through 25.310 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.  25.235(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.  25.305  Preference in admission.

    A recipient to which Sec. Sec.  25.300 through 25.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  25.300 through 25.310.



Sec.  25.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
25.300 through 25.310 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.  25.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  25.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  25.300 through 25.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  25.300 through 25.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  25.400  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

[[Page 244]]

receives Federal financial assistance. Sections 25.400 through 25.455 do 
not apply to actions of a recipient in connection with admission of its 
students to an education program or activity of a recipient to which 
Sec. Sec.  25.300 through 25.310 do not apply, or an entity, not a 
recipient, to which Sec. Sec.  25.300 through 25.310 would not apply if 
the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  25.400 
through 25.455, 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.  25.405  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.

[[Page 245]]

    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  25.410  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.  25.415  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.  25.420  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.  25.425  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

[[Page 246]]

other materials for appraising or counseling students shall not use 
different materials for students on the basis of their sex or use 
materials that permit or require different treatment of students on such 
basis unless such different materials cover the same occupations and 
interest areas and the use of such different materials is shown to be 
essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec.  25.430  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,