14 CFR 1271.605 14 CFR Ch. V (1-1-92 Edition)
14 CFR 1271.605 List of CFR Sections Affected
14 CFR 1271.605 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entires indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
14 CFR 1271.605 1986
14 CFR
51 FR
Page
Chapter V
1203 Subpart authority citation removed 33241
1203.800 -- 1203.802 (Subpart H) Revised 33241
1203.900 -- 1203.904 (Subpart I) Revised 32784
1204.500 -- 1204.508 (Subpart 5) Authority citation revised 26860,
26861, 27528
1204.501 Revised 26862
1204.502 Removed 24652
1204.503 Revised 26860
1204.504 Revised 27528
1204.507 Removed 24653
1208 Added 7010, 7022
1209.300 -- 1209.305 (Subpart 3) Revised 28924
1209.400 -- 1209.405 (Subpart 4) Revised 3945
1210 Revised 34083
1215 Appendix A revised 7261
1240.100 -- 1240.109 (Subpart 1) Revised 3947
1240.200 -- 1240.206 (Subpart 2) Revised 3946
1251 Revised 26862
1260 Revised 2626
1262 Revised; interim 15311
14 CFR 1271.605 1987
14 CFR
52 FR
Page
Chapter V
1201.200 Revised 31986
1201.300 (a)(3) and (c)(3) revised 31986
1201.402 Revised 31986
1204.509 Added 35538
1206 Authority citation revised 18905
Revised 41407
1206.101 (g) through (o) added; interim 18905
1206.601 (c) revised; interim 18906
1206.603 (c) revised; interim 18906
1206.700 -- 1206.706 (Subpart 7) Revised; interim 18906
1207 Revised 22755
1207.405 (a)(4) correctly revised 36234
1208 Revised; interim; eff. 1-19-88 48017
1213 Revised 45936
1215 Appendix A revised 10881
1221.100 -- 1221.118 (Subpart 1221.1) Revised 45811
1245.100 -- 1245.118 (Subpart 1) Revised 43748
1260.104 (b) revised 12378
1260.105 (a) and (b) revised 12378
1260.109 Added 12378
1260.406 (a) and undesignated center heading revised 12378
1260.420 (e) added 12378
(e) correctly designated 13375
1260.514 (d) amended 12379
1260.602 Revised 12379
1260.603 Amended 12379
1261.400 -- 1261.417 (Subpart 1261.4) Revised 19487
1261.500 -- 1261.508 (Subpart 1261.5) Added 19495
1261.600 -- 1261.606 (Subpart 1261.6) Added 19497
1264 Added; interim 39498
14 CFR 1271.605 1988
14 CFR
53 FR
Page
Chapter V
1201.200 (a) (1) and (3) and (c)(8) revised 33110
1201.400 (c) revised 33110
1203.202 (f) and (g) revised 41318
1203.604 (c)(2)(ii) revised 41318
1203.800 -- 1203.802 (Subpart H) Revised 45259
1206.300 (b)(7) correctly revised 5765
1206.401 (c), (f), (j), (k), and (l) correctly revised 2738
1206.500 Introductory text correctly revised 2738
1206.503 (a)(4) correctly revised 2738
1207.403 (b)(2) revised 4606
1207.405 (a)(4) redesignated as (a)(5); new (a)(4) added 4606
(a)(2) (v) and (vi) correctly designated and revised 5765
1214.1600 -- 1214.1606 (Subpart 1214.16) Removed 47949
1215 Appendix A revised 26235
1216.100 -- 1216.103 (Subpart 1216.1) Authority citation added 9760
1216.103 (a) introductory text, (b)(2) and (3), and (c)(2) revised
9760
1216.200 -- 1216.205 (Subpart 1216.2) Authority citation added 9760
1216.202 Revised 9760
1216.204 (a), (e)(2), and (f) revised 9760
1216.205 (b)(9) revised 9760
1216.300 -- 1216.321 (Subpart 1216.3) Authority citation added 9760
1216.301 (b) revised 9760
1216.302 (a) introductory text revised; (a)(4) and (f) added 9761
1216.303 (a) introductory text and (c) revised 9761
1216.304 Introductory text, (a)(1), and (b)(1) revised 9761
1216.305 (d)(1), (4), (5), and (6) revised 9761
1216.306 (a), (b), and (c) revised 9761
1216.308 (a) and (b) revised 9761
1216.309 Revised 9762
1216.310 (a) revised 9762
1216.311 Revised 9762
1216.313 (b) revised; flush text following (b) designated as (c) and
revised 9762
1216.315 Revised 9762
1216.316 Revised 9762
1216.318 Revised 9763
1216.319 Revised 9763
1216.320 (a)(3) and (b) revised 9763
1216.321 (a)(3) and (5) and (c) through (f) revised 9763
1251 Authority citation revised 25882
1251.501 -- 1251.570 (Subpart 1251.5) Added 25882, 25885
1251.570 (c) revised 25882
1260.107 (f) revised 38286
1260.110 Added 38286
1260.202 (b) (1) through (4) and (c) revised 38286
1260.210 Added 38286
1260.420 (f) added; interim 29328
(d) amended; (g) added 38286
1261.316 Added 27482
1261.317 Added 27483
1265 Added; nomenclature change 19177, 19204
1265.105 (w) added 19177
14 CFR 1271.605 1989
14 CFR
54 FR
Page
Chapter V
1203.900 -- 1203.904 (Subpart I) Revised 6881
1204.1000 -- 1204.1003 (Subpart 1204.10) Revised 2099
1204.1200 -- 1204.1202 (Subpart 1204.12) Removed 14955
1206.101 (p) and (q) added 13518
1206.401 (j) revised 49750
1206.500 Heading and introductory text revised 49750
1206.502 (a)(3) revised 49750
1206.503 (a)(4) revised 49750
1206.600 Revised 49750
1206.601 (a) revised 49750
1206.602 Revised 49750
1206.603 (a) and (b) revised 49750
1206.604 Revised 49750
1206.610 Added 13518
(b) introductory text heading amended 49750
1207 Authority citation revised 4002
(Subpart F) heading added 4003
1207.700 -- 1207.704 (Subpart G) Added 4003
1207.800 -- 1207.801 (Subpart H) Added 4003
1208 Regulations at 52 FR 48017 confirmed; see regulation codified
at 49 CFR 24 8912
1214.300 -- 1214.306 (Subpart 1214.3) Revised 48587
1214.1000 -- 1214.1107 (Subpart 1214.11) Revised 37940
1215 Appendix A revised 10627
1221.110 (d) revised 32963
1221.113 (b)(1) revised 32963
Correctly amended 53799
1232 Added; interim 35870
1259 Added 19880
1260.103 (a) amended 43050
1260.105 (d) amended 43050
1260.106 (a)(9) added; (b), and (c) introductory text amended 43050
1260.109 (d) added 43050
1260.201 (a) introductory text and (1) amended 43050
1260.203 (a) (1), (3) and (b) introductory text, (b)(1) (i), (v) and
(vi) amended; (vii) added 43050
1260.204 (a) and (b) amended 43051
1260.209 Revised 43051
1260.210 Revised 43051
1260.302 Amended 43051
1260.305 (b)(2) amended 43051
1260.306 (a)(2) revised 43051
1260.307 (b) revised 43051
1260.310 Added 43052
1260.420 (f) revised 9427
(b) amended; (h) added 43052
1260 Exhibit G revised 43052
1261.100 -- 1261.110 (Subpart 1261.1) Authority citation revised
35456
1261.102 Revised 35456
1264.101 (d), (m)(3), (o) and (q) revised 599
1264.102 (a)(3) and (b)(3) revised 599
1264.103 (c) revised 599
1264.106 (b)(4) revised 599
1264.107 (b) (1), (2), and (3) revised 600
1264.108 (c) added 600
1264.114 Revised 600
1264.115 Heading revised 600
1264.117 (c) revised 600
1264.118 (c) (3) and (5) revised 600
1264.125 (b) revised 600
1264.126 (c) revised 600
1264.132 (f)(2) revised 600
1264.136 (c) revised 600
1264.137 (f) revised; (g) added 600
1264.138 (b)(1), (c), and (l) revised 600
1265 Heading and authority citation revised 4954
Technical correction 6363
1265.305 (c) (3) and (4) amended; (c)(5) added; interim 4950, 4954
1265.320 (a) revised; interim 4950, 4954
1265.600 -- 1265.630 (Subpart F) Added; interim 4950, 4954
1265 Appendix C added; interim 4950, 4954
14 CFR 1271.605 1990
14 CFR
55 FR
Page
Chapter V
1201 Revised 37222
1207.80 Correctly removed 9250
1214.500 -- 1214.505 (Subpart 1214.5) Revised 53289
1214.1000 -- 1214.1003 (Subpart 1214.10) Removed 30689
1215 Appendix A revised 20593
1221.111 (a)(5) revised 1404
1240 Revised 614
1245.208 Revised 51276
1251.302 (c) revised; eff. 1-18-91 52138, 52140
1263 Added 28370
1265.600 -- 1265.635 (Subpart F) Regulation at 54 FR 4950, 4954
confirmed; revised 21688, 21692
1265 Appendix C regulation at 54 FR 4950, 4954 confirmed; revised
21690, 21692
1271 Added; interim 6737, 6748
14 CFR 1271.605 1991
14 CFR
56 FR
Page
Chapter V
1204.501 (a) revised 57592
1204.503 (b), (f)(3)(i)(D), (ii), (g) and (i) revised 57592
1204.504 (a), (e)(3)(ii)(B), (iii), (f) and (h) revised 57592
1204.1400 -- 1204.1407 (Subpart 14) Revised 35812
1205 Removed 14191
1209.100 -- 1209.104 (Subpart 1) Revised 8910
1211 Removed 19259
1213.102 (a) introductory text revised 66787
1213.103 (a) and (b) revised 66787
1213.104 (a), (b)(1), (2) and (3) revised 66787
1213.105 (d) revised 66788
1214 Heading revised; interim 47146
1214.600 -- 1214.610 (Subpart 1214.6) Revised 31074
1214.700 -- 1214.704 (Subpart 1214.7) Heading revised 27899
1214.700 Revised 27899
1214.701 (a), (c) and (f) revised 27899
1214.702 Heading, (a), (c) and (d) revised 27900
1214.703 (a), (c) and (d) revised 27900
1214.704 (a) revised 27900
1214.900 Revised; interim 47146
1214.901 Revised; interim 47146
1214.904 (b)(2) and (3) revised; interim 47146
1214.905 (b) introductory text and (f) revised; interim 47146
1214.906 (a) and (e) revised; (f) added; interim 47146
1214.907 Revised; interim 47147
1214.909 Revised; interim 47147
1214.910 Heading, (a), (b) and (c) revised; interim 47147
1214.911 (l) and (m) revised; interim 47147
1214.912 Revised; interim 47147
1214.1500 -- 1214.1506 (Subpart 1214.15) Redesignated as Part 1217
and republished 47148
1214.1700 Revised 47148
1214.1703 Revised 47148
1214.1704 (a) and (d) revised 47148
1215.100 Revised 28048
1215.101 Revised 28048
1215.104 Revised 28048
1215.105 (b) and (d) revised 28049
1215.107 Revised 28049
1215.108 (a) revised 28049
1215.109 (b)(2)(i) and (6) introductory text revised 28049
1215.111 Revised 28049
1215.113 (a) and (c) revised 28049
1215.114 (b) revised 28049
1215 Appendixes A and C revised 28049
1216.202 (b) revised 50506
1216.204 (a), (e)(1), (2), and (f) revised 50506
1216.205 (b)(1), (2), (6), and (9) revised 50506
1216.303 (c) revised 50507
1216.309 (a) revised 50507
1217 Redesignated from 1214.1500 -- 1214.1506 (Subpart 1214.15) and
republished 47148
1230 Added 28012, 28019
1230.101 (b)(5) corrected 29756
1230.103 (f) corrected 29756
1245.502 Heading and introductory text revised 19797
1245.503 (a) revised 19797
1266 Added 48430
Chapter XXIII
2301 Revised 59174
Program policy statement 59185
14
Aeronautics and Space
PART 1200 TO END
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
14 CFR 1271.605 Table of Contents
Page
Explanation v
Title 14:
Chapter V -- National Aeronautics and Space Administration
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
14 CFR 1271.605 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
14 CFR 1271.605 THIS TITLE
Title 14 -- Aeronautics and Space is composed of five volumes. The
parts in these volumes are arranged in the following order: parts 1-59,
60-139, 140-199, 200-1199, and part 1200-End. The first three volumes
containing parts 1-199 are comprised of chapter I -- Federal Aviation
Administration, Department of Transportation (DOT). The fourth volume
containing parts 200-1199 is comprised of chapter II -- Office of the
Secretary, DOT (Aviation Proceedings) and chapter III -- Office of
Commercial Space Transportation, DOT. The fifth volume containing part
1200-End is comprised of chapter V -- National Aeronautics and Space
Administration. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 1992.
A redesignation table appears in the Finding Aids section of the
volume containing parts 60-139.
For this volume, Ina C. Masters was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
15 CFR 0.0 15 CFR Subtitle A (1-1-92 Edition)
15 CFR 0.0 Office of the Secretary, Commerce
15 CFR 0.0 Title 15 -- Commerce and
15 CFR 0.0 Foreign Trade
15 CFR 0.0 (This book contains parts 0 to 299)
Part
SUBTITLE A -- Office of the Secretary of Commerce 0
SUBTITLE B -- Regulations Relating to Commerce and Foreign Trade:
chapter i -- Bureau of the Census, Department of Commerce 30
chapter ii -- National Institute of Standards and Technology,
Department of Commerce 200
15 CFR 0.0 15 CFR Subtitle A (1-1-92 Edition)
15 CFR 0.0 Office of the Secretary, Commerce
15 CFR 0.0 Subtitle A -- Office of the Secretary of Commerce
Part
Page
0 Employee responsibilities and conduct
1 The Seal of the Department of Commerce
2 Procedures for handling and settlement of claims under the Federal
Tort Claims Act
3 (Reserved)
4 Public information
4a Classification, declassification and public availability of
national security information
4b Privacy Act
5 Operation of vending stands
6 Standardization of data elements and representations
7 National voluntary laboratory accreditation program procedures
8 Nondiscrimination in federally-assisted programs of the Department
of Commerce -- effectuation of Title VI of the Civil Rights Act of 1964
8a (Reserved)
8b Prohibition of discrimination against the handicapped in federally
assisted programs operated by the Department of Commerce
8c Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the the Department of Commerce
9 Procedures for a voluntary labeling program for household
appliances and equipment to effect energy conservation
10 Procedures for the development of voluntary product standards
11 Uniform relocation assistance and real property acquisition for
Federal and federally assisted programs
12 Fair packaging and labeling
13 Intergovernmental review of Department of Commerce programs and
activities
14 (Reserved)
15 Service of process
15a Testimony by employees and production of documents in civil legal
proceedings not involving the United States
15b Involuntary child and spousal support allotments of NOAA corps
officers
16 Procedures for a voluntary consumer product information labeling
program
17 Licensing of Government-owned inventions in the custody of the
Department of Commerce
18 Attorney's fees and other expenses
19 (Reserved)
20 Nondiscrimination on the basis of age in programs or activities
receiving Federal financial assistance
21 Administrative offset
22 Salary offset
23 Use of penalty mail in the location and recovery of missing
children
24 Uniform administrative requirements for grants and cooperative
agreements to state and local governments
25 Program
26 Governmentwide debarment and suspension (nonprocurement)
27 Protection of human subjects
28 New restrictions on lobbying
29a Audit requirements for state and local governments
29b Audit requirements for institutions of higher education and other
nonprofit organizations
15 CFR 0.0
15 CFR 0.0 15 CFR Subtitle A (1-1-92 Edition)
15 CFR 0.0 Office of the Secretary, Commerce
15 CFR 0.0 PART 0 -- EMPLOYEE RESPONSIBILITIES AND CONDUCT
15 CFR 0.0 Subpart A -- General Provisions
Sec.
0.735-1 Purpose.
0.735-2 Relation to basic provisions.
0.735-3 Applicability.
0.735-4 Definitions.
15 CFR 0.0 Subpart B -- General Policy
0.735-5 General principles.
0.735-6 Standards required in the Federal service.
0.735-7 Special requirements of the Department.
0.735-8 Limitations on private activities and interests.
15 CFR 0.0 Subpart C -- Statutory Limitations Upon Employee Conduct
0.735-9 Employee responsibilities.
15 CFR 0.0 Subpart D -- Regulatory Limitations Upon Employee Conduct
0.735-10 Administrative extension of statutory limitations.
0.735-10a Proscribed actions.
0.735-11 Gifts, entertainment, and favors.
0.735-12 Outside employment or other activity.
0.735-13 Financial interests.
0.735-14 Use of Government time or property.
0.735-15 Misuse of employment or information.
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.
15 CFR 0.0 Subpart E -- Statements of Employment and Financial
Interests
0.735-20 General provisions.
0.735-21 Form and content of statements.
0.735-22 Employees required to submit statements.
0.735-22a Employee's complaint on filing requirement.
0.735-23 Employees not required to submit statements.
0.735-24 Time and place for submission of original statements.
0.735-25 Supplementary statements.
0.735-26 Interests of employees' relatives.
0.735-27 Information not known by employees.
0.735-28 Information not required.
0.735-29 Confidentiality of employees' statements.
0.735-30 Relation of this part to other requirements.
0.735-31 Special Government employees.
15 CFR 0.0 Subpart F -- Supplementary Regulations
0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.
15 CFR 0.0 Subpart G -- Admininstration
0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.
15 CFR 0.0 Subpart H -- Disciplinary Actions Concerning
Post-Employment Conflict of Interest Violations
0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.
Appendix A -- Statutes Governing Conduct of Federal Employees
Appendix B -- Position Categories, Grade GS-13, and Above, Requiring
Statements of Employment and Financial Interests By Incumbents
Appendix C -- Position Categories Below GS-13 Requiring Statements of
Employment and Financial Interests By Incumbents
Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.;
5 CFR 735.104, unless otherwise noted.
Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.
15 CFR 0.0 Subpart A -- General Provisions
15 CFR 0.735-1 Purpose.
The purpose of this part is to set forth Department of Commerce
policy and procedure relating to employee responsibilities and conduct.
15 CFR 0.735-2 Relation to basic provisions.
(a) This part implements the following:
(1) The provisions of law cited in this part;
(2) Executive Order 11222 of May 8, 1965 (3 CFR, 1965 Supp. p. 130);
(3) Part 735 of the Civil Service regulations (5 CFR 735.101-735.412,
inclusive).
(b) This part prescribe additional standards of ethical and other
conduct and reporting requirements deemed appropriate in the light of
the particular functions and activities of this Department.
15 CFR 0.735-3 Applicability.
This part applies to all persons included within the term
''employee'' as defined in 0.735-4, except as otherwise provided in
this part.
15 CFR 0.735-4 Definitions.
For purposes of this part, except as otherwise indicated in this
part:
(a) Employee (1) Shall include: (i) Every officer and employee of
the Department of Commerce (regardless of location), including
commissioned officers of the Environmental Science Services
Administration; and
(ii) Every other person who is retained, designated, appointed, or
employed by a Federal officer or employee, who is engaged in the
performance of a function of the Department under authority of law or an
Executive act, and who is subject to the supervision of a Federal
officer or employee while engaged in the performance of the duties of
his position not only as to what he does but also as to how he performs
his duties, regardless of whether the relationship to the Department is
created by assignment, detail, contract, agreement or otherwise.
(2) Shall not include: (i) Members of the Executive Reserve except
when they are serving as employees of the Department under the
circumstances described in paragraph (a)(1) of this section;
(ii) Members of crews of vessels owned or chartered to the Government
and operated by or for the Maritime Administration under a General
Agency Agreement; or
(iii) Any other person who is determined legally not to be an officer
or employee of the United States.
(b) Special Government employee shall mean an employee as defined in
paragraph (a) of this section who is retained, designated, appointed, or
employed to perform with or without compensation, for not to exceed 130
days during any period of 365 consecutive days, temporary duties on
either a full-time or intermittent basis.
(c) Personnel officer means a personnel official to whom the power of
appointment is redelegated under Administrative Order 202-250.
(d) Operating unit means, for purposes of this part, primary and
constituent operating units designated as such in the Department Order
Series of the Department of Commerce and, in addition, the Office of the
Secretary.
(e) Head of an operating unit,for the purposes of this part, includes
the Assistant Secretary for Administration with respect to the
performance of functions under this part for the Office of the
Secretary.
15 CFR 0.735-4 Subpart B -- General Policy
15 CFR 0.735-5 General principles.
Apart from statute, there are certain principles of fair dealing
which have the force of law and which are applicable to all officers of
the Government. A public office is a public trust. No public officer
can lawfully engage in business activities which are incompatible with
the duties of his office. He cannot, in his private or official
character, enter into engagements in which he has, or can have, a
conflicting personal interest. He cannot allow his public duties to be
neglected by reason of attention to his private affairs. Such conflicts
of interest are not tolerated in the case of any private fiduciary, and
they are doubly proscribed for a public trustee. (40 Ops. Atty. Gen.
187, 190.)
15 CFR 0.735-6 Standards required in the Federal service.
5 CFR 735.101 states: ''The maintenance of unusually high standards
of honesty, integrity, impartiality, and conduct by Government employees
and special Government employees is essential to assure the proper
performance of the Government business and the maintenance of confidence
by citizens in their Government.''
15 CFR 0.735-7 Special requirements of the Department.
The close and sensitive relationship between the Department of
Commerce and the Nation's business community calls for special vigilance
on the part of all officers and employees to avoid even any appearance
of impropriety. The regulations set forth in this part have been
adopted in order to promote the efficiency of the service in the light
of the particular ethical and administrative problems arising out of the
work of the Department.
15 CFR 0.735-8 Limitations on private activities and interests.
It is the policy of the Department to place as few limitations as
possible on private activities or interests consistent with the public
trust and the effective performance of the official business of the
Department. There is no general statutory or regulatory limitation on
the conduct of private activities for compensation by officers or
employees of the Department, when the private activity is not connected
with any interest of the Government. When the private activity does not
touch upon some interest, it may be conducted if it falls outside
applicable statutory limitations and regulatory limitations.
15 CFR 0.735-8 Subpart C -- Statutory Limitations Upon Employee Conduct
15 CFR 0.735-9 Employee responsibilities.
Each employee and special Government employee has a positive duty to
acquaint himself with the numerous statutes relating to the ethical and
other conduct of employees and special employees of the Department and
of the Government Appendix A of this part contains a listing of the more
important statutory provisions of general applicability. In case of
doubt on any question of statutory application to fact situations that
may arise, the employee should consult the text of the statutes, which
will be made available to him by his organization unit, and he should
also avail himself of the legal counseling provided by this part.
15 CFR 0.735-9 Subpart D -- Regulatory Limitations Upon Employee Conduct
15 CFR 0.735-10 Administrative extension of statutory limitations.
The provisions of the statutes identified in this part which relate
to the ethical and other conduct of Federal employees are adopted and
will be enforced as administrative regulations, violations of which may
in appropriate cases be the basis for disciplinary action, including
removal. The fact that a statute which may relate to employee conduct
is not identified in this part does not mean that it may not be the
basis for disciplinary action against an employee.
15 CFR 0.735-10a Proscribed actions.
An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity
of the Government.
15 CFR 0.735-11 Gifts, entertainment, and favors.
(a) General limitations. Except as provided in paragraphs (b) and
(f) of this section, an employee shall not solicit or accept, directly
or indirectly, any gift, gratuity, favor, entertainment, loan, payment
of expenses, fee, compensation, or any other thing of monetary value,
for himself or another person, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Department of Commerce;
(2) Conducts operations or activities that are regulated by the
Department of Commerce; or
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duty or by
actions of the Department.
(b) Exceptions. The following exceptions are authorized to the
limitation in paragraph (a) of this section:
(1) Acceptance of a gift, gratuity, favor, entertainment, loan,
payment of expenses, fee, compensation, or other thing of monetary value
incident to obvious family or personal relationships (such as those
between the employee and the parents, children, or spouse of the
employee) when the circumstances make it clear that it is those
relationships rather than the business of the persons concerned which
are the motivating factors.
(2) Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where an employee may
properly be in attendance. For the purpose of this section, ''nominal
value'' means that the value of the food or refreshments shall not be
unreasonably high under the circumstances.
(3) Acceptance of loans from banks or other financial institutions on
customary terms and on security not inconsistent with paragraph (a) of
this section, to finance proper and usual activities of employees, such
as home mortgage loans.
(4) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value.
(5) Acceptance of a gift, gratuity, favor, entertainment, loan,
payment of expenses, fee, compensation, or other thing of monetary value
when such acceptance is determined by the head of the operating unit
concerned to be necessary and appropriate in view of the work of the
Department and the duties and responsibilities of the employee. A copy
of each such determination shall be sent to the counselor of the
Department.
(6) Special Government employees are covered by this section only
while employed by the Department or in connection with such employment.
(c) (Reserved)
(d) Gifts to superiors. An employee shall not solicit a contribution
from another employee for a gift to an official superior, make a
donation as a gift to an official superior, or accept a gift from an
employee receiving less pay than himself (5 U.S.C. 7351). However, this
paragraph does not prohibit a voluntary gift of nominal value or
donation in a nominal amount made on a special occasion such as
marriage, illness, or retirement. An employee who violates these
requirements shall be removed from the service.
(e) Gifts from a foreign government. An employee shall not accept a
gift, present, decoration, or other thing from a foreign government
unless acceptance is (1) authorized by Congress as provided by the
Constitution and in Pub. L. 89-673, 80 Stat. 952, and (2) authorized
by the Department of Commerce as provided in Administrative Order
202-739.
(f) Reimbursement for travel expenses and subsistence. Neither this
section nor 0.735-12 precludes an employee from receipt of bona fide
reimbursement, unless prohibited by law, for expenses of travel and such
other necessary subsistence as is compatible with this part for which no
Government payment or reimbursement is made. However, this paragraph
does not allow an employee to be reimbursed, or payment to be made on
his behalf, for excessive personal living expenses, gifts,
entertainment, or other personal benefits, nor does it allow an employee
to be reimbursed by a person for travel on official business under
agency orders when reimbursement is proscribed by Decision B-128527 of
the Comptroller General dated March 7, 1967. (Requirements applicable
to Department of Commerce employees are set forth in Department of
Commerce Administrative Order 203-9.)
15 CFR 0.735-12 Outside employment or other activity.
(a) Incompatible outside employment or other outside activity. An
employee shall not engage in outside employment or other outside
activity not compatible (1) with the full and proper discharge of the
duties and responsibilities of his Government employment, (2) with the
policies or interests of the Department, or (3) with the maintenance of
the highest standards of ethical and moral conduct. Incompatible
activities include but are not limited to:
(i) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, a conflict of interest;
(ii) Outside employment which tends to impair the employee's mental
or physical capacity to perform his Government duties and
responsibilities in an acceptable manner;
(iii) Employment with any foreign government, corporation,
partnership, instrumentality, or individual unless authorized by the
Department;
(iv) Employment by, or service rendered under contract with, any of
the persons listed in 0.735-11(a);
(v) Receipt by an employee, other than a special Government employee,
of any salary or anything of monetary value from a private source as
compensation for his services to the Government. (18 U.S.C. 209).
(b) Improper benefit from official activity. (1) No employee of the
Department shall receive compensation (e.g., an honorarium) or anything
of monetary value, other than that to which he is duly entitled from the
Government, for the performance of any activity during his service as
such employee of the Department and within the scope of his official
responsibilities.
(2) As used in this paragraph, ''within the scope of his official
responsibilities'' means in the course of or in connection with his
official responsibilities. (See 29 Comp. Gen. 163; 30 id. 246; 32 id.
454; 35 id. 354; B-131371, July 17, 1957.)
(3) An activity shall ordinarily be considered to be in the course of
or in connection with an employee's official responsibilities if it is
performed as a result of an invitation or request which is addressed to
the Department or a component thereof, or which is addressed to an
employee at his office at the Department, or which there is reason to
believe is extended partly because of the official position of the
employee concerned. (When in doubt, it may be asked whether it is
likely that the invitation would have been received if the recipient
were not associated with the Department.) Whether an employee is on
leave while performing an activity shall be considered irrelevant in
determining whether an activity is performed in the course of or in
connection with the employee's official responsibilities.
(4) Acceptance of a gift or bequest on behalf of the Department shall
be made in accordance with Department Order 3 and Administrative Order
203-9.
(c) Teaching, lecturing, and writing. Employees are encouraged to
engage in teaching, lecturing, and writing that is not prohibited by
law. Executive Order 11222, 5 CFR Part 735, or the regulations in this
part and Administrative Order 201-4, ''Writing for Outside
Publication,'' subject to the following conditions:
(1) An employee shall not, either for or without compensation, engage
in teaching, lecturing, or writing, including teaching, lecturing, or
writing for the purpose of the special preparation of a person or class
of persons for an examination of the Office of Personnel Management or
the Board of Examiners for the Foreign Service, that depends on
information obtained as a result of his Government employment, except
when that information has been made available to the general public or
will be made available on request, or when the Assistant Secretary for
Administration or his designee gives written authorization for the use
of nonpublic information on the basis that the use is in the public
interest.
(2) No employee shall receive compensation or anything of monetary
value for any consultation, lecture, discussion, writing, or appearance,
the subject matter of which is devoted substantially to the
responsibilities, programs, or operations of the Department of Commerce,
or which draws substantially on official data or ideas which have not
become part of the body of public information. As used in this
paragraph, ''the body of public information'' shall mean information
which has been disseminated widely among segments of the public which
may be affected by or interested in the information concerned, or which
is known by such segments of the public to be freely available on
request to a Government agency.
(d) (Reserved)
(e) Application of the limitations. This section does not preclude
an employee from:
(1) (Reserved)
(2) Participation in the activities of National or State political
parties not proscribed by law.
(3) Participation in the affairs of, or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
(32 FR 15222, Nov. 2, 1967, as amended at 33 FR 9765, July 6, 1968;
55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-13 Financial interests.
(a) An employee shall not: (1) Have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially, with his Government duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his
Government employment.
(b) No employee shall participate in any manner, on behalf of the
United States, in the negotiation of contracts, the making of loans, and
grants, the granting of subsidies, the fixing of rates, or the issuance
of valuable permits or certificates, or in any investigation or
prosecution, or in the transaction of any other official business, which
affects chiefly a person with whom he has any economic interest or any
pending negotiations concerning a prospective economic interest, except
with express prior authorization as provided for in Sube.
(c) In support of claims for loss or damage to property which is not
economically repairable, the claimant should submit statements of the
original cost of the property, date of purchase, and the value of the
property before and after the accident together with a statement setting
forth the basis used in arriving at such value. Such statements should
be from at least two disinterested, competent persons, preferably
reputable dealers or other qualified persons familiar with the type of
property er involving them, and are thereby exempted from the
prohibitions of 18 U.S.C. 208(a), and do not exclude such employee's
participation in the transaction of any official business involving such
financial or economic interests:
Deposits in a bank, savings and loan association, building
association, credit union or similar financial institution; policies
held with an insurance company; constructive interests in companies and
other entities owned or held by a mutual fund or other diversified
investment company in which the employee has an interest.
These exempted financial (or economic) interests need not be reported
by employees in their statements of employment and financial interests
referred to in 0.735-21.
(18 U.S.C. 208(b); 5 CFR 735.404a)
(32 FR 15222, Nov. 2, 1967, as amended at 41 FR 34939, Aug. 18, 1976;
47 FR 3350, Jan. 25, 1982)
15 CFR 0.735-14 Use of Government time or property.
(a) An employee shall not directly or indirectly use, or allow the
use of, Government time or property of any kind, including property
leased to the Government, for other than officially approved activities.
(b) Each employee shall protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
him.
15 CFR 0.735-15 Misuse of employment or information.
(a) Use of Government employment. An employee shall not use his
Government employment for a purpose that is, or gives the appearance of
being, motivated by the desire for private gain for himself or another
person, particularly one with whom he has family, business, or financial
ties.
(b) Use of inside information. For the purpose of furthering a
private interest, an employee shall not, except as provided in
0.735-12(c), directly or indirectly use, or allow the use of,
information which has been or has the appearance of having been obtained
through or in connection with his Government employment and which has
not been made available to the general public.
(c) Coercion. An employee shall not use his Government employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to himself or another person, particularly one with
whom he has family, business, or financial ties.
(d) Disclosure of restricted information. No employee shall divulge
restricted commercial or economic information, or restricted information
concerning the personnel or operations of any Government agency, or
release any such information in advance of the time prescribed for its
authorized release.
(e) Discrimination. No employee, acting in his official capacity,
shall, directly or indirectly, authorize, permit, or participate in any
act or course of conduct which, on the ground of race, color, creed,
national origin, or sex, excludes from participation, denies any benefit
to, or otherwise subjects to discrimination any person under any program
or activity administered or conducted by the Department or one of its
units, or such employee. (See Department Order 195.)
15 CFR 0.735-16 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law such as Federal, State,
or local taxes. For purposes of this section, ''a just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court, and ''in a proper and timely manner'' means in a
manner which, in the view of the Department, does not, under the
circumstances, reflect adversely on the Government as his employer.
(b) In the event of dispute between an employee and an alleged
creditor, this section does not require the Department to determine the
validity or amount of the disputed debt.
15 CFR 0.735-17 Gambling, betting, and lotteries.
An employee shall not participate while on Government-owned or leased
property or while on duty for the Government, in any gambling activity
including the operation of a gambling device, in conducting a lottery or
pool, in a game for money or property or in selling or purchasing a
numbers slip or ticket. However, this section does not preclude
activities (a) necessitated by an employee's law enforcement duties, or
(b) under section 3 of Executive Order 10927 (relating to solicitations
conducted by organizations composed of civilian employees or members of
the armed forces among their own members for organizational support or
for benefit or welfare funds for their own members) and similar
agency-approved activities.
15 CFR 0.735-18 General conduct prejudicial to the Government.
(a) General policy. Officers and employees of the Federal Government
are servants of the people. Because of this, their conduct must, in
many instances, be subject to more restrictions and to higher standards
than may be the case in certain private employments. They are expected
to conduct themselves in a manner which will reflect favorably upon
their employer. Although the Government is not particularly interested
in the private lives of its employees, it does expect them to be honest,
reliable, trustworthy, and of good character and reputation. They are
expected to be loyal to the Government, and to the department or agency
in which they are employed.
(b) Specific policy. An employee shall not engage in criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct, or
other conduct prejudicial to the Government.
(c) Regulations applicable to public buildings and grounds. Each
employee is responsible for knowing and complying with regulations of
the General Services Administration and of the Department of Commerce
applicable to public buildings and grounds.
15 CFR 0.735-19 Reporting undue influence to superiors.
Each employee shall report to his superior any instance in which
another person inside or outside the Federal Government uses or attempts
to use undue influence to induce, by reason of his official Government
position, former Government employment, family relationship, political
position, or otherwise, the employee to do or omit to do any official
act in derogation of his official duty.
15 CFR 0.735-19 Subpart E -- Statements of Employment and Financial Interests
15 CFR 0.735-20 General provisions.
(a) In order to carry out the purpose of this part, certain employees
of the Department, specified in or pursuant to this part, will be
required to submit statements of outside employment and financial
interests for review designed to disclose conflicts of interest,
apparent conflicts of interest on the part of employees, and other
matters within the purview of this part.
(b) When a conflict or apparent conflict of interest on the part of
an employee or other question of compliance with the provisions of this
part arises and is not resolved at a lower level within the Department,
e.g., by appropriate remedial action, the information concerning the
matter shall be reported to the Secretary through the counselor for the
Department designated in 0.735-38.
(c) In the event of a conflict or apparent conflict of interest on
the part of an employee or other question of compliance with the
provisions of this part, the employee concerned shall be provided an
opportunity to explain the matter. After consideration of the conflict
or apparent conflict of interest or other question of compliance, and
the employee's explanation thereof, appropriate action shall be taken.
15 CFR 0.735-21 Form and content of statements.
(a) Statements of employment and financial interests shall be
submitted as far as practicable on one of the following forms, as
appropriate:
(1) Form CD-220, ''Confidential Statement of Employment and Financial
Interests (For Use by Government Employees Other Than Special Government
Employees)''; or
(2) Form CD-219, ''Confidential Statement of Employment and Financial
Interests (For Use by Special Government Employees).''
(b) Each of the foregoing forms shall contain, as a minimum, the
information required by the formats prescribed by the Office of
Personnel Management in the Federal Personnel Manual. Questions on a
statement of employment and financial interests that go beyond, or are
in greater detail than, those included on the Office's formats may be
included on a statement only with the approval of the Assistant
Secretary for Administration and the Office.
(c) (Reserved)
(d) The employee will not be required to reveal precise amounts of
financial interest when such information is not necessary for a proper
determination as to whether there is any apparent conflict of interest.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-22 Employees required to submit statements.
Except as provided in 0.735-23, a statement of employment and
financial interests shall be submitted by the following employees other
than special Government employees:
(a) Employees paid at a level of the Executive Schedule in Subchapter
II of Chapter 53 of Title 5, United States Code.
(b) Employees classified at GS-13 or above under section 5332 of
Title 5, United States Code, or at a comparable pay level under another
authority, who are in positions the basic duties and responsibilities of
which are determined by the head of the operating unit concerned to
require the incumbent to make a Government decision or to take a
Government action in regard to:
(1) Contracting or procurement;
(2) Administering or monitoring grants or subsidies;
(3) Regulating or auditing private or other non-Federal enterprise;
or
(4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise.
Each employee who occupies a position in one of the above-listed
categories and who is not excluded from the reporting requirement shall
be notified that he is subject to the reporting requirement.
(c) The following employees classified at GS-13 or above under
section 5332 of Title 5, United States Code, or at a comparable pay
level under another authority, not otherwise subject to paragraph (b) of
this section:
(1) Employees in grade GS-16 or above, or in comparable or higher
positions.
(2) Employees in Schedule C positions.
(3) Employees in hearing examiner or hearing officer positions.
(4) Persons employed as experts, consultants, or advisers.
(5) Employees in positions or categories of positions, regardless of
their official title, identified in Appendix B of this part.
(d) Employees classified below GS-13 under section 5332 of Title 5,
United States Code, or at a comparable pay level under another
authority, who are in positions or categories of positions, regardless
of their official title, identified in Appendix C to this part.
(e) Appendices B and C. (1) Appendix B to this part shall be
maintained and changes made therein in accordance with the criteria in 5
CFR 735.403(c) and in accordance with the procedure in this paragraph.
Appendix C to this part shall be maintained and changes made therein in
accordance with the criteria in 5 CFR 735.403(d) and in accordance with
the procedure in this paragraph.
(2) Heads of operating units and heads of offices in the Office of
the Secretary shall, in conformity with the above-cited criteria,
recommend changes in Appendix B and Appendix C to the Assistant
Secretary for Administration for approval. Changes in Appendix C shall
be submitted, with specific justification, to the Office of Personnel
Management for further prior approval.
(3) Incumbents of positions added to Appendix B or to Appendix C
shall become subject to the reporting requirements of this part upon
receipt of notification that their position is subject to such
requirements. Appendix B and Appendix C shall be republished annually
to reflect changes in the lists.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-22a Employee's complaint on filing requirement.
An employee shall have an opportunity for review through the
Department of Commerce grievance procedure, as provided by
Administrative Order 202-770, of a complaint by him that his position
has been improperly included under the regulations of the Department as
one requiring the submission of a statement of employment and financial
interests.
15 CFR 0.735-23 Employees not required to submit statements.
(a) Employees in positions that meet the criteria in paragraph (b),
(c), or (d) of 0.735-22 may be excluded from the reporting requirement
when the head of the operating unit concerned determines that:
(1) The duties of a position are such that the likelihood of the
incumbent's involvement in a conflicts-of-interest situation is remote;
or
(2) The duties of a position are at such a level of responsibility
that the submission of a statement of employment and financial interests
is not necessary because of the degree of supervision and review over
the incumbent or the inconsequential effect on the integrity of the
Government.
(b) A statement of employment and financial interests is not required
by this part from the Secretary of Commerce, from the head of an
independent agency for which the Department of Commerce performs
administrative services, or from a full-time member of a committee,
board, or commission appointed by the President. These employees are
subject to separate reporting requirements under section 401 of
Executive Order 11222.
15 CFR 0.735-24 Time and place for submission of original statements.
(a) An employee required to submit a statement of employment and
financial interests under this part shall submit that statement not
later than:
(1) Ninety days after the effective date of this part if the employee
is employed by the Department on or before the effective date of this
part; or
(2) Thirty days after the employee's entrance on duty date, but in no
case earlier than 90 days after the effective date of this part.
(b) Statements shall be submitted to a personnel officer specified by
the head of the operating unit or to such other person as the head of
the operating unit, with the approval of the Secretary, may specify.
Secretarial officers and heads of operating units shall submit their
statements to the Secretary or to such person as the Secretary may
designate.
15 CFR 0.735-25 Supplementary statements.
Changes in, or additions to, the information contained in an
employee's statement of employment and financial interests shall be
reported in a supplementary statement as of June 30 each year, except
when the Office of Personnel Management authorizes a different date on a
showing by the Department of necessity therefor. (The Commission has
authorized filing of the supplementary statement for 1967 as of
September 30, 1967.) If no changes or additions occur, a negative report
is required. Notwithstanding the filing of the annual report required
by this section, each employee shall at all times avoid acquiring a
financial interest that could result, or taking an action that would
result, in a violation of the conflicts-of-interest provisions of
section 208 of Title 18, United States Code, or Subpart D of this part.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-26 Interests of employees' relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this section, ''member of an employee's
immediate household'' means those blood relations who are members of the
employee's household.
15 CFR 0.735-27 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his behalf.
15 CFR 0.735-28 Information not required.
This part does not require an employee to submit on a statement of
employment and financial interests or supplementary statement any
information relating to the employee's connection with, or interest in,
a professional society or a charitable, religious, social, fraternal,
recreational, public service, civic, or political organization or a
similar organization not conducted as a business enterprise. For the
purpose of this section, educational and other institutions doing
research and development or related work involving grants of money from
or contracts with the Government are deemed ''business enterprises'' and
are required to be included in an employee's statement of employment and
financial interests.
15 CFR 0.735-29 Confidentiality of employees' statements.
(a) No employee may have access to a statement of employment and
financial interests, or a supplementary statement, unless his official
duties make access necessary. Each employee who has access to such a
statement is responsible for maintaining it in confidence and shall not
allow access to, or allow information to be disclosed from, a statement
except to an employee of the Department of Commerce or the Office of
Personnel Management to carry out the purpose of this part or to other
persons as the Office of Personnel Management or the Assistant Secretary
for Administration may determine for good cause shown. (The foregoing
limitations do not apply to release of information by an employee with
respect to a statement he has submitted under this section.)
(b) The employees designated in paragraph (b) of 0.735-24 to receive
statements are authorized to review and retain the statements and are
responsible for maintaining the statements in confidence, as provided in
this section.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-30 Relation of this part to other requirements.
(a) The requirement that employees submit statements of employment
and financial interests and supplementary statements under this part is
in addition to, and not in substitution for, or in derogation of, any
similar requirement imposed by law, order, or regulation.
(b) The submission of a statement or supplementary statement by an
employee does not permit him or any other person to participate in a
matter in which his or the other person's participation is prohibited by
law, order, or regulation, including this part.
15 CFR 0.735-31 Special Government employees.
(a) Special Government employees shall be required to report:
(1) All other employment; and
(2) Financial interests specified on Form CD-219.
(b) A waiver may be granted to the requirements of this section in
the case of a special Government employee who is not a consultant or
expert (as defined in Chapter 304 of the Federal Personnel Manual) when
a determination is made that the duties of the position held by that
special Government employee are of such a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Government. Any such
waiver shall be approved by the head of the operating unit concerned or
his designee. A copy of the waiver shall be filed with the deputy
counselor for the organization unit concerned.
(c) The original statement of employment and financial interests
required to be submitted by a special Government employee shall be
submitted not later than his entry on duty. Each special employee shall
keep his statement current throughout his employment with the Department
by the submission of supplementary statements.
15 CFR 0.735-31 Subpart F -- Supplementary Regulations
15 CFR 0.735-32 Departmental.
The Assistant Secretary for Administration may prescribe
supplementary instructions consistent with this part.
15 CFR 0.735-33 Operating units.
Each operating unit is hereby authorized and directed to prescribe,
after approval by the Assistant Secretary for Administration, such
additional regulations not inconsistent with this part as may be
necessary to effectuate the general purpose of this part in the light of
its individual operating requirements, including but not limited to
pertinent statutory provisions, such as:
(a) 35 U.S.C. 4, 122 (Patent Office);
(b) 46 U.S.C. 1111(b) (Maritime Administration);
(c) Certain provisions of the Defense Production Act of 1950, e.g.,
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App.
2160(f) (prohibition of use of confidential information for purposes of
speculation) (Business and Defense Services Administration and any other
primary operating unit affected); and
(d) Certain provisions of Pub. L. 89-136, the Public Works and
Economic Development Act of 1965, e.g., section 711 (restriction on
employing certain EDA employees by applicants for financial assistance),
and section 710(b) (embezzlement), false book entries, sharing in loans,
etc., and giving out unauthorized information for speculation).
15 CFR 0.735-34 Effective date of supplementary regulations.
Supplementary regulations prescribed pursuant to 0.735-33, shall
become effective upon approval by the issuing officer unless a different
date is required by law or a later date is specified therein.
15 CFR 0.735-34 Subpart G -- Administration
15 CFR 0.735-35 Responsibilities of employees.
It is the responsibility of each employee:
(a) To assure, at the outset of his employment, that each of his
interests and activities is consistent with the requirements established
by or pursuant to this part;
(b) To submit a statement of employment and financial interests at
such times and in such form as may be specified in or pursuant to this
part;
(c) To certify, upon entering on duty in the Department, that he has
read this part and applicable regulations supplementary thereto;
(d) To obtain prior written authorization of any interest or activity
about the propriety of which any doubt exists in the employee's mind, as
provided in 0.735-39;
(e) To confine each of his interests and activities at all times
within the requirements established by or pursuant to this part,
including any authorizations granted pursuant to this part; and
(f) To obtain a further written authorization whenever circumstances
change, or the nature or extent of the interest or activity changes, in
such a manner as to involve the possibility of a violation or appearance
of a violation of a limitation or requirement prescribed in or pursuant
to this part.
15 CFR 0.735-36 Responsibilities of operating units.
The head of each operating unit, or his designee, shall:
(a) Furnish or make available to each employee a copy of this part
(or a comprehensive summary thereof) within 90 days after approval of
this part by the Office of Personnel Management, and, upon their
issuance, a copy of any regulations supplementary thereto (or a
comprehensive summary thereof);
(b) Furnish or make available to each new employee at the time of his
entrance on duty a copy of this part as it may be amended and any
supplementary regulations (or a comprehensive summary thereof);
(c) Bring this part (or as it may be amended and any supplementary
regulations thereto) to the attention of each employee annually, and at
such other times as circumstances may warrant as may be determined by
the Assistant Secretary for Administration;
(d) Have available for review by employees, as appropriate, copies of
laws, Executive orders, this part, supplementary regulations, and
pertinent Office of Personnel Management regulations and instructions
relating to ethical and other conduct of Government employees;
(e) Advise each employee who is a special Government employee of his
status for purposes of 18 U.S.C. 203 and 205;
(f) Require each employee specified in 0.735-22 to submit a
statement of employment and financial interests, as provided by or
pursuant to this part;
(g) Develop an appropriate form, with the approval of the counselor
of the Department, on which the employee may certify that he has read
this part and applicable regulations supplementary thereto, in
accordance with 0.735-35(c), and on which he may, if he so desires,
indicate that he has a private activity or interest about which he
requests advice and guidance as provided by 0.735-38.
(h) Require each employee upon entering on duty and at such other
times as may be specified, to execute the certification required by
0.735-35(c);
(i) Report to the program Secretarial Officer concerned and to the
Assistant Secretary for Administration promptly any instance in which an
employee, after notice, fails to submit the certification required under
0.735-35(c) or a statement of employment or financial interests
required under this part within 14 calendar days following the
prescribed time limit for doing so; and
(j) Take action to impress upon each employee required to submit a
statement of employment and financial interests, upon his supervisor,
and upon employees with whom the employee works, their responsibility as
follows:
(1) The employee's supervisor is responsible (i) for excluding from
the range of duties of the employee any contracts or other transactions
between the Government and his outside employer, clients, or entities in
which he has an interest within the purview of this part, and (ii) for
overseeing the employee's activities in order to insure that the public
interest is protected from improper conduct on his part and that he will
not, through ignorance or inadvertence, embarrass the Government or
himself.
(2) The employee's supervisor and employees with whom he works are
responsible for avoiding the use of the employee's services in any
situation in which a violation of law, regulation, or ethical standards
is likely to occur or to appear to occur.
(3) The supervisor of an employee is responsible for initiating
prompt and proper disciplinary or remedial action when a violation,
intentional or innocent, is detected.
(4) Employees shall avoid divulging to a special Government employee
privileged Government information which is not necessary to the
performance of his governmental responsibility or information which
directly involves the financial interests of his non-Government
employer.
(5) An employee shall make every effort in his private work to avoid
any personal contact with respect to negotiations with the Department
for contracts, grants, or loans, if the subject matter is related to the
subject matter of his Government employment. When this is not possible,
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C.
203 and 205) in the negotiations for his private employer only with the
prior approval of the head of the operating unit concerned.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-37 Procedure.
The review of statements of employment and financial interests shall
include the following basic measures, among others:
(a) Statements shall be submitted to the designated officer, who will
review each employee's statement of employment and financial interests
to ascertain whether they are consistent with the requirements
established by or pursuant to this part. (See 0.735-24(b).)
(b) Where the statement raises any question of compliance with the
requirements of this part, it shall be submitted to a deputy counselor
for the organization unit concerned. The deputy counselor may, in his
discretion, utilize the advice and services of others (including
departmental facilities) to obtain further information needed to resolve
the questions.
(c) The designated officer shall maintain the statements of
employment and financial interests in a file apart from the official
personnel files and shall take every measure practicable to insure their
confidentiality. Statements of employment and financial interests shall
be preserved for 5 years following the separation of an employee from
the Department or following termination of any other relationship under
which the individual rendered service to the Department, except as may
be otherwise authorized by the Assistant Secretary for Administration or
as required by law.
15 CFR 0.735-38 Availability for counseling.
(a) The General Counsel of the Department shall:
(1) Serve as the counselor for the Department of Commerce with
respect to matters covered by the basic provisions cited in 0.735-2(a)
and otherwise by or pursuant to this part;
(2) Serve as the Department of Commerce designee to the Office of
Personnel Management on matters covered by this part; and
(3) Coordinate the counseling services provided under this part and
assure that counseling and interpretations on questions of conflicts of
interest and other matters covered by this part are available to deputy
counselors designated under paragraph (b) of this section.
(b) The counselor shall designate employees who shall serve as deputy
counselors for employees of the Department of Commerce with respect to
matters covered by or pursuant to this part and shall give authoritative
advice and guidance to each employee who seeks advice and guidance on
questions of conflict of interests and other matters covered by or
pursuant to this part.
(c) Each operating unit shall notify its employees of the
availability of counseling services and of how and where these services
are available. This notification shall be given within 90 days after
approval of this part by the Office of Personnel Management and
periodically thereafter. In the case of a new employee appointed after
the foregoing notification, notification shall be made at the time of
his entrance on duty.
(d) In each operating unit a deputy counselor shall advise and
counsel each employee concerning any adjustments necessary in his
financial interests or activities, or in any contemplated interests or
activities, in order to meet the requirements established by or pursuant
to this part.
(32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 0.735-39 Authorizations.
All requests for authorizations required under this part shall be
addressed to the head of the operating unit concerned. In the Office of
the Secretary such requests shall be addressed to the Secretary or such
person as he may designate. When granted, authorizations will be in
writing, and a copy of each authorization will be filed in the
employees' official personnel file.
(a) In case of doubt, or upon the request of the employee concerned,
cases or questions will be forwarded to the counselor or a deputy
counselor. (See 0.735-38.)
(b) Where an activity requested to be authorized can be conducted as
official business, it shall not be authorized as a private activity, but
shall be conducted as official business.
(c) Where authorizations involve speaking, writing, or teaching, use
of the official title of the employee for identification purposes may be
authorized, provided the employee makes it clear that his statements and
actions are not of an official nature.
(d) If an authorization has been granted for a specific activity or
interest, and the activity or interest is subsequently deemed to
constitute a violation of the limitations or requirements prescribed in
or pursuant to this part, the employee concerned shall be notified in
writing of the cancellation of the authorization and shall modify or
stop the activity or interest involved, as requested.
15 CFR 0.735-40 Disciplinary and other remedial action.
(a) Violation of a requirement established in or pursuant to this
part shall be cause for appropriate disciplinary action, which may be in
addition to any penalty prescribed by law.
(b) When, after consideration of the explanation of the employee
provided by 0.735-20(c), the reviewing officer, in cooperation with the
responsible supervisory official, decides that remedial action is
required, he will take or cause to be taken immediate action to end the
conflict or appearance of conflict of interest. Remedial action may
include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee of his conflicting interest;
(3) Disciplinary action (including removal from the service); or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise, shall be effected
in accordance with applicable laws, Executive orders, and regulations.
(c) No disciplinary or remedial action may be taken under this
section against an employee of another Federal department or agency on
detail to the Department of Commerce other than through and with the
concurrence of the detailed employee's employing agency.
15 CFR 0.735-41 Inquiries and exceptions.
(a) Inquiries relating to legal aspects of the limitations set forth
in or cited in or pursuant to this part should be submitted to the
appropriate deputy counselor. Inquiries relating to other aspects of
this part or regulations supplementary thereto should be referred to the
appropriate personnel office.
(b) Within the limits of administrative discretion permitted to the
Department, exceptions to the requirements of this part may be granted
from time to time in unusual cases by the head of the operating unit,
whenever the facts indicate that such an exception would promote the
efficiency of the service. Each request for such an exception should be
submitted in writing to the head of the operating unit concerned, and
shall contain a full statement of the justification for the request.
Reports concerning such requests, if approved, shall be forwarded to the
program Secretarial Officer concerned and to the Assistant Secretary for
Administration by the head of the operating unit concerned.
15 CFR 0.735-41 Subpart H -- Disciplinary Actions Concerning
Post-Employment Conflict of Interest Violations
Authority: 18 U.S.C. 207(j); 5 CFR 737.27.
Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985,
unless otherwise noted.
15 CFR 0.735-42 Scope.
(a) These regulations establish procedures for imposing sanctions
against a former employee for violating the post-employment restrictions
of the conflict of interest laws and regulations set forth in 18 U.S.C.
207 and 5 CFR Part 737. These procedures are established pursuant to
the requirement in 18 U.S.C. 207(j). The General Counsel is responsible
for resolving questions on the legal interpretation of 18 U.S.C. 207 or
regulations issued thereunder and for advising employees on these
provisions.
(b) For purposes of this subpart, (1) ''Former employee'' means a
former Government employee as defined in 5 CFR 737.3(a)(4) who had
served in the Department;
(2) ''Lesser included sanctions'' means sanctions of the same type
but more limited scope as the proposed sanction; thus a bar on
communication with an operating unit is a lesser included sanction of a
proposed bar on communication with the Department and a bar on
communication for one year is a lesser included sanction of a proposed
five year bar;
(3) ''Assistant Secretary'' means the Assistant Secretary for
Administration or designee;
(4) ''Director'' means the Director for Personnel and Civil Rights,
Office of the Secretary, or designee;
(5) ''Inspector General'' and ''General Counsel'' include any persons
designated by them to perform their functions under this subpart; and
(6) ''Days'' means calendar days except that a dead-line which falls
on a weekend or holiday shall be extended to the next working day.
15 CFR 0.735-43 Report of violations and investigation.
(a) If an employee has information which indicates that a former
employee has violated any provisions of 18 U.S.C. 207 or regulations
thereunder, that employee shall report such information to the Inspector
General.
(b) Upon receiving information as set forth in paragraph (a) of this
section from an employee or any other person, the Inspector General,
upon a determination that it is nonfrivolous, shall expeditiously
provide the information to the Director, Office of Government Ethics,
and to the Criminal Division, Department of Justice. The Inspector
General shall coordinate any investigation under this subpart with the
Department of Justice, unless the Department of Justice informs the
Inspector General that it does not intend to initiate criminal
prosecution.
(c) All investigations under this subpart shall be conducted in such
a way as to protect the privacy of former employees. To ensure this, to
the extent reasonable and practical, any information received as a
result of an investigation shall remain confidential except as necessary
to carry out the purposes of this subpart, including the conduct of an
investigation, hearing, or judicial proceeding arising thereunder, or as
may be required to be released by law.
(d) The Inspector General shall report the findings of the
investigation to the Director.
15 CFR 0.735-44 Initiation of proceedings.
If the Director determines, after an investigation by the Inspector
General, that there is reasonable cause to believe that a former
employee has violated post-employment statutes or regulations, the
Director shall initiate administrative proceedings under this subpart by
proposing sanctions against the former employee and by providing notice
to the former employee as set forth in 0.735-45.
15 CFR 0.735-45 Notice.
(a) The Director shall notify the former employee of the proposed
disciplinary action in writing by registered or certified mail, return
receipt requested, or by any means which gives actual notice or is
reasonably calculated to give actual notice. Notice shall be considered
received if sent to the last known address of the former employee.
(b) The notice shall include: (1) A statement of allegations and the
basis thereof sufficiently detailed to enable the former employee to
prepare a defense;
(2) A statement that the former employee is entitled to a hearing if
requested within 20 days from date of notice;
(3) An explanation of the method by which the former employee may
request a hearing under this subpart including the name, address, and
telephone number of the person to contact if there are further
questions;
(4) A statement that the former employee has the right to submit
documentary evidence to the Director if a hearing is not requested and
an explanation of the method of submitting such evidence and the date by
which it must be received; and
(5) A statement of the sanctions which have been proposed.
15 CFR 0.735-46 Hearing.
(a) Examiner. (1) Upon timely receipt of a request for a hearing,
the Director shall refer the matter to the Assistant Secretary who shall
appoint an examiner to conduct the hearing and render an initial
decision.
(2) The examiner shall be impartial, shall not be an individual who
has participated in any manner in the decision to initiate the
proceedings, and shall not have been employed under the immediate
supervision of the former employee or have been employed under a common
immediate supervisor. The examiner shall be admitted to practice law
and have suitable experience and training to conduct the hearing, reach
a determination and render an initial decision in an equitable manner.
(b) Time, date, and place. The hearing shall be conducted at a
reasonable time, date, and place as set by the examiner. In setting the
date, the examiner shall give due regard to the need for both parties to
adequately prepare for the hearing and the importance of expeditiously
resolving allegations that may be damaging to the former employee's
reputation.
(c) Former employee's rights. At a hearing, the former employee
shall have the right:
(1) To represent himself or herself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical
evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on
request.
(d) Procedure and evidence. In a hearing under this subpart, the
Federal Rules of Evidence and Civil Procedure do not apply but the
examiner shall exclude irrelevant or unduly repetitious evidence and all
testimony shall be taken under oath or affirmation. The examiner may
make such orders and determinations regarding the admissibility of
evidence, conduct of examination and cross-examination, and similar
matters which the examiner deems necessary or appropriate to ensure
orderliness in the proceedings and fundamental fairness to the parties.
There shall be no discovery unless agreed to by the parties and ordered
by the examiner. The hearing shall not be open to the public unless the
former employee or the former employee's representative waives the right
to a closed hearing, in which case the examiner shall determine whether
the hearing will be open to the public.
(e) Ex-parte communications. The former employee, the former
employee's representative, and the agency representative shall not make
any ex-parte communications to the examiner concerning the merits of the
allegations against the former employee prior to the issuance of the
initial decision.
(f) Initial decision. (1) The proposed sanctions shall be sustained
in an initial decision upon a determination by the examiner that the
preponderance of the evidence indicated a violation of post-employment
statutes or regulations.
(2) The examiner shall issue an initial decision which is based
exclusively on the transcript of testimony and exhibits together with
all papers and requests filed in connection with the proceeding and
which sets forth all findings of fact and conclusions of law relevant to
the matter at issue.
(3) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under 0.735-48.
15 CFR 0.735-47 Decision absent a hearing.
(a) If the former employee does not request a hearing in a timely
manner, the Director shall make an initial decision on the basis of
information compiled in the investigation, and any submissions made by
the former employee.
(b) The proposed sanction or a lesser included sanction shall be
imposed if the record indicates a violation of post-employment statutes
or regulations by a preponderance of the evidence.
(c) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under 0.735-48.
15 CFR 0.735-48 Administrative appeal.
(a) Within 30 days after issuance of the initial decision, either
party may appeal the initial decision or any portion thereof to the
Assistant Secretary. The opposing party shall have 20 days to respond.
(b) If an appeal is filed, the Assistant Secretary shall issue a
final decision which shall be based solely on the record, or portions
thereof cited by the parties to limit issues, and the appeal and
response. The Assistant Secretary shall also decide whether to impose
the proposed sanction or a lesser included sanction.
(c) If the final decision modifies or reverses the initial decision,
it shall state findings of fact and conclusions of law which differ from
the initial decision.
15 CFR 0.735-49 Sanctions.
(a) If there has been a final determination that the former employee
has violated post-employment statutes or regulations, the Director shall
impose, subject to the authority of the Assistant Secretary under
0.735-48(b), the sanction which was proposed in the notice to the former
employee or a lesser included sanction.
(b) Sanctions which may be imposed include: (1) Prohibiting the
former employee from making, on behalf of any other person except the
United States, any formal or informal appearance before or, with the
intent to influence, any oral or written communication to the Department
or any organizational sub-unit thereof on any matter of business for a
period not to exceed five years; and
(2) Other appropriate disciplinary action.
(c) The Director may enforce the sanctions of paragraph (b)(1) of
this section by directing any or all employees to refuse to participate
in any such appearance or to accept any such communication. As a method
of enforcement, the Director may establish a list of former employees
against whom sanctions have been imposed.
15 CFR 0.735-50 Judicial review.
Any former employee found to have violated 18 U.S.C. 207, or
regulations issued thereunder, by a final administrative decision under
this subpart may seek judicial review of the administrative
determination.
15 CFR 0.735-50 Pt. 0, App. A
15 CFR 0.735-50 Appendix A -- Statutes Governing Conduct of Federal
Employees
There are numerous statutes pertaining to the ethical and other
conduct of Federal employees, far too many to attempt to list them all.
Consequently, only the more important ones of general applicability are
referred to in this appendix.
.01 Title 18, U.S.C., section 201, prohibits anyone from bribing or
attempting to bribe a public official by corruptly giving, offering, or
promising him or any person selected by him, anything of value with
intent (a) to influence any official act by him, (b) to influence him to
commit or allow any fraud on the United States, or (c) to induce him to
do or omit to do any act in violation of his lawful duty. As used in
section 201, ''Public officials'' is broadly defined to include
officers, employees, and other persons carrying on activities for or on
behalf of the Government.
.02 Section 201 also prohibits a public official's solicitation or
acceptance of, or agreement to take, a bribe. In addition, it forbids
offers or payments to, and solicitations or receipt by, a public
official of anything of value ''for or because of'' any official act
performed or to be performed by him.
.03 Section 201 further prohibits the offering to or the acceptance
by a witness of anything of value involving intent to influence his
testimony at a trial, Congressional hearing, or agency proceeding. A
similar provision applies to witnesses ''for or because of'' testimony
given or to be given. The provisions summarized in this section do not
preclude lawful witness fees, travel and subsistence expenses, or
reasonable compensation for expert testimony.
.01 Title 18, U.S.C., section 203, prohibits an officer or employee
from receiving compensation for services rendered for others before a
Federal department or agency in matters in which the Government is a
party or is interested.
.02 Section 203 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department of
Commerce more than 60 days during the preceding period of 365 days,
section 203 applies to him only in relation to a particular matter
involving a specific party or parties (1) in which he has at any time
participated personally and substantially in his governmental capacity,
or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department no
more than 60 days during the preceding period of 365 days, section 203
applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 203 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
.01 Title 18, U.S.C., section 205, prohibits an officer or employee,
otherwise than in the performance of his official duties, from:
a. Acting as agent or attorney for prosecuting any claim against the
United States, or receiving any gratuity, or any share of or interest in
any such claim in consideration of assistance in the prosecution of such
claims; or
b. Acting as agent or attorney for anyone before any Government
agency, court, or officer in connection with any matter in which the
United States is a party or has a direct and substantial interest.
.02 Section 205 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department
more than 60 days during the preceding period of 365 days, section 205
applies to him only in relation to a particular matter involving a
specific party or parties (1) in which he has at any time participated
personally and substantially in his governmental capacity, or (2) which
is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department no
more than 60 days during the preceding period of 365 days, section 205
applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 205 does not preclude:
a. An employee, if not inconsistent with faithful performance of his
duties, from acting without compensation as agent or attorney for any
person who is the subject of disciplinary, loyalty, or other personnel
administration proceedings, in connection with those proceedings; or
b. An employee from giving testimony under oath or from making
statements required to be made under penalty for perjury or contempt.
.04 Sections 203 and 205 do not preclude:
a. An employee from acting as agent or attorney for his parents,
spouse, child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary, except in those matters in which he has participated
personally and substantially as a Government employee or which are the
subject of his official responsibility, provided the head of the
operating unit concerned approves; or
b. A special Government employee from acting as agent or attorney for
another person in the performance of work under a grant by, or a
contract with, or for the benefit of, the United States, provided the
head of the operating unit concerned, with the approval of the
appropriate program Secretarial Officer, shall certify in writing that
the national interest so requires, and such certification shall be
published in the Federal Register.
.05 Section 205 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
.01 Title 18 U.S.C., section 207:
a. Provides that a former Government officer or employee, including a
former special Government employee, shall be permanently barred from
acting as agent or attorney for anyone other than the United States in
any matter in which the United States is a party or is interested and in
which he participated personally and substantially in a governmental
capacity;
b. Bars a former Government officer or employee, including a special
Government employee, of an agency, for a period of 1 year after his
employment with it has ceased, from appearing personally as agent or
attorney for another person before any court or agency in connection
with a matter in which the Government has an interest and which was
under his official responsibility at the employing agency (e.g.,
Department of Commerce) at any time within 1 year prior to the end of
such responsibility; and
c. Prohibits a partner of a person employed by the Government,
including a special Government employee, from acting as agent or
attorney for anyone other than the United States in matters in which the
employee participates or has participated personally and substantially
for the Government or which are the subject of his official
responsibility.
.02 Subparagraphs .01a. and .01b. of this section do not prevent a
former officer or employee or special Government employee who has
outstanding scientific or technical qualifications from acting as
attorney or agent or appearing personally before the Department of
Commerce in connection with a particular matter in a scientific or
technological field if the Assistant Secretary of Commerce for Science
and Technology shall make a certification in writing, published in the
Federal Register, that the national interest would be served by such
action or appearance by the former officer or employee.
.01 Title 18, U.S.C., section 208 prohibits an officer or employee,
including a special Government employee, from participating personally
and substantially in a governmental capacity in any matter in which, to
his knowledge, he, his spouse, minor child, partner, organization in
which he is serving as officer, director, trustee, partner, or employee,
or any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a financial interest.
.02 Section 208 does not apply:
a. If the officer or employee first advises the head of the operating
unit concerned of the nature and circumstances of the matter involved,
makes full disclosure of the financial interest, and receives in advance
a written determination made by such official, with the approval of the
appropriate program Secretarial Officer, that the interest is not so
substantial as to be deemed likely to affect the integrity of the
services which the Government may expect from the officer or employee;
or
b. If, by general rule or regulation published in the Federal
Register, the financial interest has been exempted from the requirements
of section 208 as being too remote or too inconsequential to affect the
integrity of Government officers' or employees' services.
.01 Title 18, U.S.C., section 209, prohibits:
a. An officer or employee from receiving any salary, or any
contribution to or supplementation of salary, as compensation for his
services as an officer or employee of the United States from any source
other than the Government of the United States, except as may be
contributed out of the treasury of a State, county, or municipality;
and
b. Any person or organization from paying, contributing to, or
supplementing the salary of an officer or employee under circumstances
which would make its receipt a violation of subparagraph .01a. of this
section.
.02 Section 209:
a. Does not prevent a Government employee from continuing to
participate in a bona fide pension or other welfare plan maintained by a
former employer;
b. Exempts special Government employees and employees serving the
Government without compensation, and grants a corresponding exemption to
any outside person paying compensation to such individuals; and
c. Does not prohibit the payment or acceptance of sums under the
terms of the Government Employees Training Act.
''Code of Ethics for Government Service,'' House Concurrent
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11,
1958, which reads as follows:
''Any Person in Government Service Should:
''Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
''UPHOLD the Constitution, laws, and legal regulations of the United
States and all governments therein and never be a party to their
evasion.
''GIVE a full day's labor for a full day's pay; giving to the
performance of his duties his earnest effort and best thought.
''SEEK to find and employ more efficient and economical ways of
getting tasks accomplished.
''NEVER discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not; and never accept
for himself or his family, favors or benefits under circumstances which
might be construed by reasonable persons as influencing the performance
of his governmental duties.
''MAKE no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
''ENGAGE in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
his governmental duties.
''NEVER use any information coming to him confidentially in the
performance of governmental duties as a means for making private profit.
''EXPOSE corruption wherever discovered.
''UPHOLD these principles, ever conscious that public office is a
public trust.''
.01 The prohibition against lobbying with appropriated funds (18
U.S.C. 1913) reads as follows:
''No part of the money appropriated by any enactment of Congress
shall, in the absence of express authorization by Congress, be used
directly or indirectly to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other device,
intended or designed to influence in any manner a Member of Congress, to
favor or oppose, by vote or otherwise, any legislation or appropriation
by Congress, whether before or after the introduction of any bill or
resolution proposing such legislation or appropriation, but this shall
not prevent officers or employees of the United States or of its
departments or agencies from communicating to Members of Congress on the
request of any Member or to Congress, through the proper official
channels, requests for legislation or appropriations which they deem
necessary for the efficient conduct of the public business.
''Whoever, being an officer or employee of the United States or of
any department or agency thereof, violates or attempts to violate this
section, shall be fined not more than $500 or imprisoned not more than 1
year, or both; and after notice and hearing by the superior officer
vested with the power of removing him, shall be removed from office or
employment.''
.02 The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918). An individual may not accept or hold a position in the
Government of the United States if he:
a. Advocates the overthrow of our constitutional form of government;
b. Is a member of an organization that he knows advocates the
overthrow of our constitutional form of government;
c. Participates in a strike, or asserts the right to strike, against
the Government of the United States or the government of the District of
Columbia; or
d. Is a member of an organization of employees of the Government of
the United States or of individuals employed by the government of the
District of Columbia that he knows asserts the right to strike against
the Government of the United States or the government of the District of
Columbia.
.03 The prohibition against employment of a member of a Communist
organization (50 U.S.C. 784).
.04 The prohibitions against (a) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of
confidential information (18 U.S.C. 1905). Each employee who has access
to classified information, e.g., confidential, secret, or top secret, or
to a restricted area is responsible for knowing and for complying
strictly with the security regulations of the Department of Commerce.
(See Administrative Order 207-2.)
.05 The prohibition against employment in the competitive civil
service of any person who habitually uses intoxicating beverages to
excess (5 U.S.C. 7352).
.06 The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a
Government-owned or Government-leased passenger motor vehicle or
aircraft for other than official purposes.
.07 The prohibition against the use of the franking privilege to
avoid payment of postage on private mail (18 U.S.C. 1719).
.08 The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
.09 The prohibition against fraud or false statements in a Government
matter (18 U.S.C. 1001). An employee in connection with an official
matter shall not knowingly and willfully conceal or cover up a material
fact or falsify official papers or documents.
.10 The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071). No employee may conceal, remove, mutilate, or destroy
Government documents or records except for the disposition of records in
accordance with law or regulation.
.11 The prohibition against counterfeiting and forging transportation
requests (18 U.S.C. 508). Falsely making, altering or forging, in whole
or in part, any form of transportation request is prohibited.
.12 The prohibitions against:
a. Embezzlement of Government money or property (18 U.S.C. 641). No
employee may convert any Government money or Government property to his
own use or the use of another person.
b. Failure to account for public money (18 U.S.C. 643). Any employee,
who, having received public money which he is not authorized to retain,
fails to render his accounts for same as provided by law, is guilty of
embezzlement.
c. Embezzlement of the money or property of another person in the
possession of the employee by reason of his employment (18 U.S.C. 654).
An employee is prohibited from embezzling or wrongfully converting for
his own use the money or property of another which comes under his
control as the result of his employment.
.13 The prohibition against unauthorized removal or use of documents
relating to claims from or by the Government (18 U.S.C. 285). No
employee, without authority, may remove from the place where it was kept
by authority of the United States any document, record, file, or paper
intended to be used to procure the payment of money from or by the
United States or the allowance or payment of any claim against the
United States, regardless of whether the document or paper has already
been used or the claim has already been allowed or paid; and no
employee may use or attempt to use any such document, record, file, or
paper to procure the payment of any money from or by the United States
or the allowance or payment of any claim against the United States.
.14 The prohibition against proscribed political activities,
including the following, among others:
a. Using official authority or influence for the purpose of
interfering with or influencing the result of an election, except as
authorized by law (5 U.S.C. 7324);
b. Taking an active part in political management or in political
campaigns, except as authorized by law (5 U.S.C. 7324);
c. Offering or promising to pay anything of value in consideration of
the use of, or promise to use, any influence to procure any appointive
office or place under the United States for any person (18 U.S.C. 210);
d. Soliciting or receiving, either as a political contribution or for
personal emolument, anything of value in consideration of a promise of
support or use of influence in obtaining for any person any appointive
office or place under the United States (18 U.S.C. 211);
e. Using official authority to interfere with a Federal election (18
U.S.C. 595);
f. Promising any employment compensation, or other benefit made
possible by Act of Congress in consideration of political activity or
support (18 U.S.C. 600);
g. Action by a Federal officer or employee to solicit or receive, or
to be in any manner concerned with soliciting or receiving, any
contribution for any political purpose whatever from any other Federal
officer or employee or from any person receiving compensation for
services from money derived from the Treasury of the United States (18
U.S.C. 602);
h. Soliciting or receiving (by any person) anything of value for any
political purpose whatever on any Government premises (18 U.S.C. 603);
i. Soliciting or receiving contributions for political purposes from
anyone on Federal relief or work relief (18 U.S.C. 604);
j. Payment of a contribution for political purposes by any Federal
officer or employee to another Federal officer or employee (18 U.S.C.
607); and
k. Payment of a political contribution in excess of statutory
limitations and purchase of goods, commodities, advertising, or articles
the proceeds of which inure to the benefit of certain political
candidates or organizations (18 U.S.C. 608).
.15 The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
15 CFR 0.735-50 Pt. 0, App. B
15 CFR 0.735-50 Appendix B -- Position Categories, Grade GS-13, and
Above, Requiring Statements of Employment and Financial Interests by
Incumbents
(1) Auditors.
(2) Attorneys other than attorneys engaged in patent examining or
trademark examining operations.
(3) Heads of divisions or comparable organization units, GS-15 or
above.
(4) Heads of field offices or installations, GS-15 or above.
(5) Employees in positions involving assigned duties and
responsibilities which require the incumbent to make fact-finding
determinations or to exercise judgment in recommending a decision or an
action in regard to:
a. Evaluation, appraisal, or selection of contractors or
sub-contractors, prospective contractors or prospective subcontractors,
proposals of such contractors or subcontractors, the activities
performed by such contractors or subcontractors, or determination of the
extent of compliance of such contractors or subcontractors with contract
provisions.
b. Negotiation, modification, or approval of contracts or
subcontracts.
c. Evaluation, appraisal, or selection of prospective project sites,
or locations of work or activities, including real property proposed for
acquisition by purchase or otherwise.
d. Inspection and quality assurance of material, products, or
components for acceptability.
e. Review or approval for access permits.
f. Technical planning or design which involves the preparation of
specifications or technical requirements.
g. Negotiation of agreements for cooperation or implementing
arrangements with foreign countries, international organizations, or
non-Federal enterprises.
h. Analysis, evaluation, or review of license applications.
i. Analysis, evaluation, or review of licensees' compliance with
Department of Commerce regulations and requirements.
j. Utilization or disposal of excess or surplus property.
k. Procurement of materials, services, supplies, or equipment.
l. Authorization or monitoring of grants or subsidies to educational
institutions or other non-Federal enterprises.
m. Audit of financial transactions.
n. Promulgation of safety standards, procedures, and hazards
evaluation systems.
o. Other activities where the decision or action has a substantial
economic impact on the interests of a non-Federal enterprise.
15 CFR 0.735-50 Pt. 0, App. C
15 CFR 0.735-50 Appendix C -- Position Categories Below GS-13 Requiring
Statements of Employment and Financial Interests by Incumbents
(1) Employees in the National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, who are in the following
categories of positions:
(a) Special Agents (Fish and Wildlife), Series GS-1812, grades 5
through 12.
(b) Fishery Products Inspectors, Series GS-1863, grades 5 through 12.
(5 CFR 735.104, 735.403)
(50 FR 2276, Jan. 16, 1985)
15 CFR 0.735-50 PART 1 -- THE SEAL OF THE DEPARTMENT OF COMMERCE
Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.
Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.
Source: 33 FR 9337, June 26, 1968, unless otherwise noted.
15 CFR 1.1 Purpose.
The purpose of this part is to describe the seal of the Department of
Commerce and to delegate authority to affix the seal to certifications
and documents of the Department.
15 CFR 1.2 Description and design.
(a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15
U.S.C. 1501), which established the Department of Commerce, provided
that ''The said Secretary shall cause a seal of office to be made for
the said department of such device as the President shall approve, and
judicial notice shall be taken of the said seal.'' On April 4, 1913, the
President approved and declared to be the seal of the Department of
Commerce the device which he described as follows:
Arms: Per fesse azure and or, a ship in full sail on waves of the
sea, in chief proper; and in base a lighthouse illumined proper.
Crest: The American Eagle displayed. Around the Arms, between two
concentric circles, are the words:
(b) The design of the approved seal is as shown below. Where
necessitated by requirements of legibility, immediate comprehension, or
clean reproduction, the concentric circles may be eliminated from the
seal on publications and exhibits, and in slides, motion pictures, and
television. In more formal uses of the seal, such as on letterheads,
the full, proper rendition of the seal shall be used.
INSERT Illus. No. 1A
(c) The official symbolism of the seal shall be the following: The
ship is a symbol of commerce; the blue denotes uprightness and
constancy; the lighthouse is a well-known symbol representing guidance
from the darkness which is translated to commercial enlightenment; and
the gold denotes purity. The crest is the American bald eagle denoting
the national scope of the Department's activities. (The above is a
modification of the original symbolism issued with the President's
approval of the seal, made necessary by changes in the functions of the
Department.)
15 CFR 1.3 Delegation of authority.
(a) Pursuant to authority vested in the Secretary of Commerce by law,
(1) the Chief Administrative Officer of each operating unit, and (2) the
Director, Office of Administrative Services in the Office of the
Secretary, are hereby authorized to sign as Certifying Officers
certifications as to the official nature of copies of correspondence and
records from the files, publications and other documents of the
Department and to affix the seal of the Department of Commerce to such
certifications or documents for all purposes, including the purpose
authorized by 28 U.S.C. 1733(b).
(b) Delegations of authority to persons other than those named in
paragraph (a) of this section may be made by the Assistant Secretary for
Administration.
(c) This delegation shall not affect or prejudice the use of properly
authorized office or bureau seals in appropriate cases.
15 CFR 1.3 PART 2 -- PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS
UNDER THE FEDERAL TORT CLAIMS ACT
Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Annual report.
2.8 Supplementary regulations.
Authority: Sec. 2672, 62 Stat. 983, as amended; 28 U.S.C. 2672.
15 CFR 2.1 Purpose.
(a) The purpose of this part is to delegate authority to settle or
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C.
2671-2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to
establish procedures for the administrative adjudication of such claims
accruing on or after January 18, 1967.
(32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983)
15 CFR 2.2 Provisions of law and regulations thereunder.
(a) Section 2672 of Title 28, U.S. Code, as above amended, provides
that:
The head of each Federal agency or his designee, in accordance with
regulations prescribed by the Attorney General, may consider, ascertain,
adjust, determine, compromise, and settle any claim for money damages
against the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred: Provided, that any award,
compromise, or settlement in excess of $25,000 shall be effected only
with the prior written approval of the Attorney General or his designee.
Subject to the provisions of this title relating to civil actions on
tort claims against the United States, any such award, compromise,
settlement, or determination shall be final and conclusive on all
officers of the Government, except when procured by means of fraud.
Any award, compromise, or settlement in an amount of $2,500 or less
made pursuant to this section shall be paid by the head of the Federal
agency concerned out of appropriations available to that agency.
Payment of any award, compromise, or settlement in an amount in excess
of $2,500 made pursuant to this section or made by the Attorney General
in any amount pursuant to section 2677 of this title shall be paid in a
manner similar to judgments and compromises in like causes and
appropriations or funds available for the payment of such judgments and
compromises are hereby made available for the payment of awards,
compromises, or settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or
settlement shall be final and conclusive on the claimant, and shall
constitute a complete release of any claim against the United States and
against the employee of the Government whose act or omission gave rise
to the claim, by reason of the same subject matter.
(b) Subsection (a) section 2675 of said Title 28 provides that:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail. The failure of an agency to make final disposition of
a claim within 6 months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section. The provisions of this subsection shall not
apply to such claims as may be asserted under the Federal Rules of Civil
Procedure by third party complaint, crossclaim, or counterclaim.
(c) Section 2678 of said Title 28 provides that no attorney shall
charge fees in excess of 25 percent of a judgment or settlement after
litigation, or over 20 percent of administrative settlements.
(d) Section 2679 of said Title 28 provides that tort remedies against
the United States by reason of operation by any Government employee of a
motor vehicle while acting within the scope of his employment shall be
exclusive of any other action against the employee.
(e) Section 2401(b) of said Title 28 provides that:
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within 2
years after such claim accrues or unless action is begun within 6 months
after the date of mailing, by certified or registered mail, of notice of
final denial of the claim by the agency to which it was presented.
(f) The Tort Claims Act as amended provides that it shall apply to
claims accruing 6 months or more after date of enactment (date of
enactment, July 18, 1966).
(g) Pursuant to section 2672 as amended, the Attorney General has
issued regulations (herein referred to as ''the Regulations''; 28 CFR
Part 14) prescribing standards and procedures for settlement of tort
claims (31 FR 16616). Persons delegated authority under this part shall
follow and be guided by such Regulations (28 CFR Part 14).
(32 FR 3769, Mar. 7, 1967)
15 CFR 2.3 Delegation of authority.
(a) The General Counsel is hereby named as the designee of the
Secretary ofCommerce with respect to tort claims filed under section
2672 of Title 28, U.S. Code, as described in 2.2, with authority to act
on such claims as provided in said section 2672, including denial
thereof.
(b) Authority delegated under this section may, with the approval of
the General Counsel, be redelegated to other designees.
(c) Settlement or denial of any claim under this part is final for
the Department of Commerce.
(48 FR 31636, July 11, 1983)
15 CFR 2.4 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to 14.2, 14.3, and 14.4 of the Regulations (28 CFR Part 14).
(b) Claims shall be filed with the Assistant General Counsel for
Administration, Department of Commerce, Washington, D.C. 20230.
(c) If a claim is filed elsewhere in the Department, it shall
immediately be recorded and transmitted to the Assistant General Counsel
for Administration.
(32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983)
15 CFR 2.5 Adjudication and settlement of claims.
(a) Upon receipt of a claim by the Assistant General Counsel for
Administration, the time and date of receipt shall be recorded. The
Assistant General Counsel may, after recording the claim, transmit it to
the Departmental office or primary operating unit involved in the claim
and request that an investigation be conducted. The appropriate
Departmental office or primary operating unit shall designate an
official to conduct the investigation, who shall prepare a file, obtain
additional information as necessary, and prepare for the Assistant
General Counsel's signature a proposed award or denial of the claim. If
the investigation capabilities of the office or unit are insufficient
for a proper and complete investigation, the office or unit shall
consult with the Departmental Office of Investigations and Security to:
(1) Have that Office conduct the investigation or (2) request another
Federal agency to conduct the investigation as necessary, pursuant to
14.8 of the regulations (28 CFR Part 14), all on a reimbursable basis.
(b) If the amount of the proposed award exceeds $25,000 (in which
case, approval by the Attorney General is required), or if consultation
with the Department of Justice is desired or required pursuant to 14.6
of the regulations, the Assistant General Counsel for Administration
will prepare and compile the material required by the Department of
Justice under 14.7 of the Regulations.
(c) Denial of a claim shall be communicated as provided by 14.9 of
the regulations (28 CFR Part 14).
(d) Designees hereunder are responsible for the control over and
expeditious handling of claims, bearing in mind the applicable statutory
time limitations for adjudications of claims.
(32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983)
15 CFR 2.6 Payment of claims.
When an award is made, the file on the case shall be transmitted to
the appropriate fiscal office for payment by the Department or for
transmittal for payment as prescribed by 14.10 of the Regulations (28
CFR Part 14). Prior to payment appropriate releases shall be obtained,
as provided in said section.
(32 FR 3769, Mar. 7, 1967)
15 CFR 2.7 Annual report.
The Assistant General Counsel for Administration shall compile an
annual report covering the preceding fiscal year, describing actions,
including denials, taken under this part, name of claimant, amount
claimed, amount of any award, and a brief decription of the claim. The
report shall be prepared by November 15 of each year.
(48 FR 31636, July 11, 1983)
15 CFR 2.8 Supplementary regulations.
(a) The Assistant General Counsel for Administration may from time to
time issue such supplementary regulations or instructions as he deems
appropriate to carry out the purpose of this part.
(b) Any designee mentioned in paragraph (a) of 2.3 may issue
regulations or instructions covering his area of responsibility
hereunder which are consistent with this part and with those issued
under paragraph (a) of this section, such regulations and instructions
to be approved by the Assistant General Counsel for Administration.
(32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983)
15 CFR 2.8 PART 3 -- (RESERVED)
15 CFR 2.8 Pt. 4
15 CFR 2.8 PART 4 -- PUBLIC INFORMATION
Sec.
4.1 Scope and purpose.
4.2 Policies.
4.3 Definitions.
4.4 Availability of materials for inspection and copying; indexes.
4.5 Requests for records.
4.6 Initial determinations of availability of records.
4.7 Predisclosure notification procedures for confidential commercial
information.
4.8 Appeals from initial determinations or untimely delays.
4.9 Fees.
Appendix A -- Department Administrative Order 205-12 -- Public
Information
Appendix B -- Freedom of Information Public Facilities and Addresses
for Requests for Records
Appendix C -- Officials Authorized to Make Initial Denials of
Requests for Records
Authority: 5 U.S.C. 301, 5 U.S.C. 552, 5 U.S.C. 553, Reorganization
Plan No. 5 of 1950; 31 U.S.C. 3717.
Source: 53 FR 6972, Mar. 4, 1988, unless otherwise noted.
15 CFR 4.1 Scope and purpose.
(a) This part sets forth the rules of the Department of Commerce
whereby the Department and its organizational units are to make publicly
available the materials and indexes specified in 5 U.S.C. 552(a)(2) and
the records requested under 5 U.S.C. 552(a)(3).
(b) These rules conform to requirements of the Freedom of Information
Act, 5 U.S.C. 552; as amended, and supplement Department Administrative
Order 205-12, which contains policies, delegations of authority, and
other criteria implementing 5 U.S.C. 552. DAO 205-12 is attached as
Appendix A to this part.
(c) Certain units of the Department other than those identified in
4.4(d) have, pursuant to delegated authority and for appropriate
reasons, established their own facilities for the public inspection and
copying of records. The units have provided for separate locations to
which requests for records are to be made. These facilities and
locations are identified in Appendix B to this part. The units may
publish in the Federal Register supplementary rules in addition to but
not inconsistent with this part, DAO 205-12, and the rules and
regulations contained in their respective chapters of the Code of
Federal Regulations or otherwise in the Federal Register. These
supplementary rules shall be maintained in the central public reference
facility identified in 4.4(c), where information about them may be
obtained.
15 CFR 4.2 Policies.
(a) Department Administrative Order 205-12 contains the basic
policies and other criteria to be considered in issuing and
administering these rules.
(b) Requests for records made under 5 U.S.C. 552(a)(3) apply only to
existing records. The Department is not required, in response to a
request, to create records by combining or compiling information
contained in existing records, to program or reprogram computers, or
otherwise to prepare new records. Departmental officials may, upon
request, provide or create new information in record form pursuant to
user charge statutes, such as 15 U.S.C. 1525-27, or in accord with
authority otherwise provided by law.
15 CFR 4.3 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 551
shall have the same meaning herein.
(b) As used in this part, Act means the ''Freedom of Information
Act,'' as amended, 5 U.S.C. 552.
(c) The terms Office of the Secretary and operating unit, as
explained in Department Organization Order 1-1, ''Mission and
Organization of the Department of Commerce'' (35 FR 19704, December 27,
1970), are defined as follows:
(1) The ''Office of the Secretary'' is the general management arm of
the Department and provides the principal support to the Secretary in
formulating policy and in providing advice to the President. It
provides program leadership for the Department's functions and exercises
general supervision over the operating units. It also directly carries
out program functions as may be assigned by the Secretary from time to
time, and provides, as determined to be more economical or efficient,
administrative and other support services for designated operating
units.
(2) An ''operating unit'' is an organizational entity outside the
Office of the Secretary charged with carrying out specified substantive
functions (i.e. programs) of the Department. The operating units
constitute the components of the Department through which most of its
substantive functions are carried out.
(d) The term unitas used in this part means (1) an operating unit of
the Department, and (2) each Secretarial officer and the persons and the
Departmental officers reporting to a Secretarial officer.
(53 FR 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988)
15 CFR 4.4 Availability of materials for inspection and copying;
indexes.
(a) The Assistant Secretary for Administration has established and
maintains a central public reference facility available to units of the
Department, at which place the following materials of those units
utilizing the facility shall be made available for public inspection and
copying:
(1) Final opinions and orders, including concurring and dissenting
opinions, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the participating organizations and are not published in the
Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Current indexes providing identifying information for the public
as to any matter which was issued, adopted, or promulgated after July 4,
1967, and is required by 5 U.S.C. 552(a)(2) to be made available or
published;
(5) Records of the final votes of each member in every proceeding of
an agency comprised of more than one member.
(6) Rules and decisions denying requests for records which otherwise
implement or relate to the Act; and
(7) Materials published in the Federal Register pursuant to 5 U.S.C.
552 (a)(1) and such other materials which each unit may consider
desirable and practical to make available for the convenience of the
public.
(b) The Secretary of Commerce has determined (DAO 205-12,
subparagraph 5.02a.5), that it is unnecessary and impracticable to
publish quarterly or more frequently and distribute (by sale or
otherwise) copies of each index and supplements thereto, as provided in
5 U.S.C. 552(a)(2). Upon request, copies of such indexes shall be
provided at a cost not to exceed the direct cost of duplication and
mailing, if required.
(c) The central facility established by the Assistant Secretary for
Administration is the Central Reference and Records Inspection Facility,
Room H6628, Department of Commerce Building, 14th Street between
Constitution and Pennsylvania Avenue NW., Washington, DC 20230. The
facility is open to the public Monday through Friday of each week,
except on official holidays of the Federal Government, between the hours
of 9 a.m. and 4:30 p.m. There are no fees or formal requirements for
inspection of materials. Equipment for making copies of these materials
is available for use by the public. Copies of various Commerce
Department materials regularly available for sale by the Department may
be purchased at the facility. Information about these materials can
also be obtained at this facility. Correspondence concerning materials
available at the facility or information about the rules implementing
the Act may be sent to the above address. The telephone number of the
facility is (202) 377-3271.
(d) The following units of the Department are participating in the
use of this central facility: All components of the Office of the
Secretary of Commerce.
(e) Other units of the Department which have established separate
public reference facilities, listed in Appendix B to this part, may
publish rules applicable to the services provided therein for public
inspection and copying of materials, provided such rules are not
inconsistent with the part.
15 CFR 4.5 Requests for records.
(a) A request for a record (or information contained therein) of the
Department which is not customarily made available to the public as part
of the Department's regular informational services or which is not
available in a public reference facility described in 4.4(c) or
Appendix B to this part, shall be made in writing, with the envelope and
the letter clearly marked ''Freedom of Information Request'' to
distinguish it from other mail to the Department. Each such request, so
marked, shall be addressed to the unit of the Department identified in
Appendix B to this part which the requester knows or has reason to
believe is responsible for the records requested. If the requester is
not sure which is the responsible addressee unit, it shall address the
request to the central facility identified in 4.4(c), or obtain advance
information from that facility as to which is the responsible addressee
unit.
(b) Any request for records which is not marked and addressed as
specified in paragraph (a) of this section will be so marked and
addressed by Department personnel and forwarded immediately to the
responsible unit having possession or control of the records requested
or having primary concern with such records. A request which is
improperly addressed by the requester will not be deemed to have been
''received'' for purposes of the time period set forth in 5 U.S.C.
552(a)(6), until the earlier of the time that (1) forwarding of the
request to the responsible unit has been effected, or (2) such
forwarding would have been effected with the exercise of due diligence
by Department personnel. In each instance when a request is forwarded,
the responsible unit receiving it shall notify the requester that the
request was improperly addressed and of the date the request was
received by the unit.
(c) Requesters must reasonably describe the records sought. A
request for records shall identify the records sufficiently to enable
Department personnel familiar with the subject matter to locate them
with a reasonable amount of effort. The requester shall, to the extent
possible, furnish specific descriptive information regarding date and
place the records were made, the file descriptions, subject matter,
persons involved, and other pertinent details that will help identify
the records. If the request relates to a matter in pending litigation,
the court, location, and case shall be identified. When more than one
record is requested, the request shall clearly describe each specific
record, and the specific information requested which is contained in the
record, so that its availability may be separately determined. When
appropriate, the requester shall describe the intended use of the
requested records. Employees at a facility or at a specific address
listed in Appendix B will assist the public to a reasonable extent in
framing a request.
(53 FR 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988)
15 CFR 4.6 Initial determinations of availability of records.
(a) The responsible unit which receives a request for records shall
promptly log the receipt of the request, and within ten days of its
receipt (excluding Saturdays, Sundays, and legal public holidays) shall
initially determine:
(1) Whether the request is for records under the Act, is for
materials available otherwise than under the Act, or is for information
not contained in existing records and, therefore, not under the Act.
The requester shall be promptly notified in writing how the request is
being handled when it does not come within the Act.
(2) Whether the records requested are reasonably described and can be
located on the basis of the information supplied by the requester. If
any of the records requested cannot be identified and located from the
information furnished, the unit shall promptly so inform the requester
in writing, specifying what additional identification is needed to
assist the unit in locating the record, and offering to assist the
requester to reformulate the request.
(3) Whether the records no longer exist, or are not in the unit's
possession. The unit should, if it knows which unit of the Department
or other agency may have the records, forward the request to it. In
each instance, the unit shall promptly notify the requester in writing.
(4) Whether the requested records are the exclusive or primary
concern of another executive agency. If so, the unit shall refer the
request and the responsive records to that other agency for further
action under its rules, and promptly notify the requester in writing of
this referral. When the subject matter of a classified record
originated by another agency indicates that disclosure of the identity
of the orginating agency might itself compromise national security, that
agency shall be consulted prior to any referral of the responsive
records.
(5) Whether the request is a categorical one. A categorical request,
i.e., one for all records falling within a reasonably specific but broad
category, shall be regarded as conforming to the statutory requirement
that records be reasonably described, if the particular records can be
identified, searched for, collected and produced without unduly
burdening or disrupting the unit's operations. If the categorical
request does not reasonably describe the records requested, the unit
shall promptly notify the requester in writing specifying what
additional identification is needed, and extend to the requester an
opportunity to confer with Department personnel to attempt to
reformulate the request so as to reasonably describe the records.
(6) In determining records responsive to a request a unit ordinarily
shall include only those records within a unit's possession and control
as of the date of its receipt of the request.
(7) In each of the situations set forth in paragraphs (a) and (b) of
this section, the procedures relating to fees described in 4.9 shall be
applied and coordinated as appropriate.
(b) An authorized official in the responsible unit shall review the
request to determine the availability of the records requested.
(1) The determination shall be made within ten days (excluding
Saturdays, Sundays and legal public holidays) of the receipt of the
request (as defined in 4.5(b) of this part), unless the time is
extended as provided in paragraph (b)(2) of this section.
(2) In unusual circumstances, an appropriate official authorized to
make initial denials of requests may extend the time for initial
determination for up to ten days (excluding Saturdays, Sundays and legal
public holidays) by written notice to the requester setting forth the
reasons for the extension and the date on which a determination is
expected to be sent. Extensions of time for the initial determination
and extensions of time on appeal may not exceed a total of ten days, and
time taken for the former counts against available appeal extension
time. ''Unusual circumstances'' means, but only to the extent
reasonably necessary to the processing of a particular request:
(i) 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;
(ii) The need to search for, collect, and examine a voluminous amount
of separate and distinct records which are the subject of a single
request, or
(iii) The need for consultation, which shall be conducted with all
practical speed, with another agency or unit having a substantial
interest in the determination of the request, or among two or more
components of the responsible unit having substantial subject-matter
interest in the pertinent documents.
(3) If no determination has been sent to the requester at the end of
the initial ten day period, or the last extension date, the requester
may consider the request to be initially denied, and exercise a right of
appeal of the denial. When no determination can be made within the
applicable time period, the responsible unit shall nevertheless exercise
due dilligence in continuing to process the request. It shall, on
expiration of the applicable time period, inform the requester of the
reason for the delay, of the date a determination is expected to be
sent, and of the requester's right to treat the delay as a denial and to
appeal. It may ask the requester to forego an appeal until a
determination is made.
(4) If it is determined that the records requested are to be made
available, and there are no further fees to be paid, the responsible
official shall promptly notify the requester as to how the disclosable
records will be made available. If there are fees still to be paid by
the requester, the requester shall be notified that upon payment the
records will immediately be made available.
(5) Appendix C lists the limited number of officials who have been
authorized to make initial denials of requests for records, except as
may be subsequently authorized. A reply initially denying, in whole or
in part, a request for records shall be in writing, signed by an
authorized official, and it shall include:
(i) A reference to the specific exemptions of the Act authorizing the
withholding of the records, stating briefly why the exemption applies
and, where relevant why a discretionary release is not appropriate.
(ii) The name and title or position of each official responsible for
the denial.
(iii) A statement of the manner in which any reasonably segregable
portion of a record shall be provided to the requester after deletion of
the portion which is determined to be exempt.
(iv) A brief statement of the right of the requester to appeal the
determination to the General Counsel and the address to which the appeal
should be sent, in accordance with 4.8 (a) and (b).
(6) A copy of each initial denial and its incoming request for
records shall be provided to the Assistant General Counsel for
Administration.
(53 FR 6972, Mar. 4, 1988; 53 FR 16057, 16211, May 5, 1988)
15 CFR 4.7 Predisclosure notification procedures for confidential
commercial information.
(a) General policy. Confidential commercial or financial information
provided to the Department of Commerce by a submitter shall not be
disclosed pursuant to a Freedom of Information Act request except in
accordance with this section.
(b) Definitions. (1) The term ''confidential commercial or financial
information'' means records provided to the Department by a submitter
that arguably contain material exempt from release under Exemption 4 of
the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure
could reasonably be expected to cause substantial competitive harm to
the submitter.
(2) The term ''submitter'' means any person or entity who provides
confidential commercial or financial information to the Department. The
term ''submitter'' includes, but is not limited to corporations, state
governments and foreign governments.
(c) Notice to submitters. A unit of the Department of Commerce shall
provide a submitter with prompt written notice of a request for
disclosure of confidential commercial or financial information whenever
required under paragraph (d) of this section. Such written notice shall
be sent via certified mail, return receipt requested, or any other
expeditious manner which provides for documentation of receipt of such
notice. The notice shall either describe the exact nature of the
information requested or provide copies of the records or portions
thereof containing the confidential information.
(d) When notice is required. (1) For confidential commercial or
financial information submitted to the Department prior to January 1,
1988, the unit shall provide a submitter with notice of a request
whenever:
(i) The records are less than ten years old, and the information has
been designated by the submitter as confidential commercial or financial
information;
(ii) The Department has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(iii) The information is the subject of a prior express commitment of
confidentiality given by the Department to the submitter.
(2) For confidential commercial or financial information submitted to
the Department on or after January 1, 1988, the unit shall provide a
submitter with notice of a request whenever:
(i) The submitter has in good faith designated the information as
confidential commercial or financial information, or
(ii) The unit has reason to believe that disclosure of the
information could reasonably be expected to result in substantial
competitive harm to the submitter.
(3) When a submitter has designated commercial or financial
information as confidential, notice of a FOIA request for such
information shall be required for a period of not more than ten years
after the date of submission unless the submitter requests, and provides
acceptable justification for, a specific notice period of greater
duration. Whenever possible, the submitter's claim of confidentiality
should be supported by a statement or certification by an officer or
authorized representative of the submitter that the information at issue
is in fact confidential commercial or financial information which has
not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, a unit shall afford a
submitter 7 working days from date of receipt of such notice within
which to provide the unit with a detailed statement of any objection to
disclosure. Such statement shall specify all grounds for withholding
any of the information and shall demonstrate why the information is
considered to be commercial or financial information whose disclosure is
likely to cause substantial competitive harm to the submitter.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA. Whenever notice is
given to a submitter under this section the requester shall be advised
that the submitter has been provided with notice and an opportunity to
object to disclosure.
(f) Notice of intent to disclose. A unit shall carefully consider a
submitter's objections and specific grounds for nondisclosure prior to
determining whether to disclose confidential commercial or financial
information. Whenever a unit decides to disclose information over the
objection of a submitter, the unit shall forward a written notice to the
submitter which includes:
(1) A statement of the reasons why the submitter's objections to
disclosure were not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date. Notice of intent to disclose shall
be forwarded to the submitter via certified mail, return receipt
requested. Such notice shall state the unit's intent to disclose the
information on the expiration of 7 working days from the date of the
submitter's receipt of the notice. When notice of intent to disclose is
provided to the submitter, the requester shall be advised of such notice
and of the specified disclosure date.
(g) Notice of FOIA lawsuit. Whenever a requester brings a legal
action seeking to compel disclosure of information subject to the notice
requirements of paragraph (d) of this section, the unit shall promptly
notify the submitter.
(h) When notice is not required. The notice requirements of this
section shall not apply if:
(1) The Department determines that the information should not be
disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552);
(4) The disclosure is required by an agency rule which: (i) was
adopted pursuant to notice and public comment; (ii) specifies narrow
classes of records submitted to the agency that are to be released under
the Freedom of Information Act; and (iii) provides in exceptional
circumstances for notice when the submitter provides written
justification, at the time the information is submitted or a reasonable
time thereafter, that disclosure of the information could reasonably be
expected to cause substantial competitive harm; or
(5) The designation made by the submitter of confidential commercial
or financial information appears obviously frivolous, except that the
Department must provide the submitter with written notice of any final
administrative disclosure determination 7 working days prior to the
specified disclosure date.
(53 FR 6972, Mar. 4, 1988; 53 FR 16057, May 5, 1988)
15 CFR 4.8 Appeals from initial determinations or untimely delays.
(a) When a request for records has been initially denied in whole or
in part, or has not been timely determined, or when a requester has
received an adverse initial determination regarding any other matter
under this regulation, the requester may submit a written appeal within
thirty calendar days after the date of the written denial or, if there
has been no determination, on the last day of the applicable time limit.
The appeal shall include a copy of the original request, the initial
denial, if any, and a statement of the reasons why the records requested
should be made available and why the initial denial, if any, was in
error. No opportunity for personal appearance, oral argument or hearing
on appeal is provided.
(b) An appeal shall be addressed to the General Counsel, Department
of Commerce, Room 5882, 14th and Constitution Avenue NW., Washington, DC
20230. Both the appeal envelope and the letter shall be clearly marked
''Freedom of Information Appeal.'' An appeal not addressed and marked as
provided herein will be so marked by Department personnel when it is so
identified, and will be forwarded immediately to the General Counsel.
An appeal incorrectly addressed will not be deemed to have been
''received'' for purposes of the time period for appeal set forth in 5
U.S.C. 552(a)(6), until the earlier of the time that forwarding to the
General Counsel has been effected; or such forwarding would have been
effected with the exercise of due diligence by Department personnel. In
each instance when an appeal is so forwarded, the Office of General
Counsel shall notify the requester that the appeal was improperly
addressed and of the date the appeal was received by the office.
(c) The General Counsel shall make a determination on an appeal
within twenty days (excluding Saturdays, Sundays and legal public
holidays) of its receipt, unless an extension of time is taken in
unusual circumstances, when the time for action may be extended up to
ten days (excluding Saturdays, Sundays and legal public holidays) minus
any days of extension granted at the initial request level. A notice of
such extension shall be sent to the requester, setting forth the reasons
and the date on which a determination of the appeal is expected to be
sent. As used in this paragraph, ''unusual circumstances'' are defined
in 4.6(b)(2).
(d) If a decision on appeal is to make the records available to the
requester in part or whole, such records shall be promptly made
available as provided in 4.6.
(e) If no determination of an appeal has been sent to the requester
within the twenty day period or the last extension thereof, the
requester is deemed to have exhausted his administrative remedies with
respect to such request, giving rise to a right of judicial review as
specified in 5 U.S.C. 552(a)(6)(C). When no determination can be sent to
the requester within the time limit, the General Counsel shall
nonetheless exercise due diligence in continuing to process the appeal.
When the time limit expires, the requester shall be informed of the
reason for the delay, of the date when a determination may be expected
to be made, and of his right to seek judicial review. The requester may
be asked to forego judicial review until the appeal is determined.
(f) A determination on appeal shall be in writing and, when it denies
records in whole or in part, the notice to the requester shall include:
(1) Identification of the specific exemption or exemptions of the Act
authorizing the withholding, a brief explanation of how the exemption
applies, and, when relevant, a statement as to why a discretionary
release is not appropriate;
(2) A statement that the decision is final for the Department;
(3) Advice that judicial review of the denial is available in the
district in which the requester resides or has his principal place of
business, the district in which the agency records are located, or the
District of Columbia; and
(4) The names and titles or positions of each official responsible
for the denial of the appeal.
(g) The General Counsel shall send a copy of each determination on
appeal to the central public reference facility referred to in 4.4(c)
where it will be indexed and kept available for public inspection and
copying.
(53 FR 6972, Mar. 4, 1988; 53 FR 16058, May 5, 1988)
15 CFR 4.9 Fees.
(a) Definitions. The following definitions are applicable to this
section.
(1) The term ''direct costs'' means those expenditures which an
agency actually incurs in searching for and duplicating (and in the case
of commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, and heating or lighting the facility in which the
records are stored.
(2) The term ''search'' includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents. Such activity should be
distinguished, however, from ''review'' of material in order to
determine whether the material is exempt from disclosure (see paragraph
(a)(4) of this section). Searches may be done manually or by computer
using existing programming.
(3) The term ''duplication'' refers to the process of making a copy
of a document necessary to respond to a FOIA request. Such copies can
take the form of paper copy, microform, audio-visual materials, or
machine readable documentation (e.g., magnetic tape or disk), among
others. The copy provided must be in a form that is reasonably usable
by requesters.
(4) The term ''review'' refers to the process of examining documents
located in response to a request that is for a commercial use (see
paragraph (a)(5) of this section) to determine whether any portion of
any document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(5) The term ''commercial use request'' refers to a request from or
on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of the requester or
the person on whose behalf the request is made. In determining whether
a requester properly belongs in this category, the Department must
determine the use to which a requester will put the documents requested.
Moreover, where the department has reasonable cause to doubt the use to
which a requester will put the records sought, or where that use is not
clear from the request itself, the Department shall seek additional
clarification before assigning the request to a specific category.
(6) The term ''educational institution'' refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education and an institution
of vocational education, which operates a program or programs of
scholarly research.
(7) The term ''non-commercial scientific institution'' refers to an
institution that is not operated on a ''commercial'' basis as that term
is referenced in paragraph (a)(5) of this section, and which is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular products or industry.
(8) The term ''representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ''news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ''news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ''freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the Department may also look
to the past publication record of a requester in making this
determination.
(b) Application -- Uniform fee schedule. The fees described in this
section apply to FOIA requests processed by all units of the Department.
They reflect rates for the full allocable direct cost of search,
review, and duplication. The fees to be charged shall be based on the
requester category.
(1) The four specific categories and chargeable fees are:
(2) Uniform fee schedule.
(3) Charging interest. Interest may be charged to those requesters
who fail to pay fees charged in a timely fashion. Assessment of such
interest will commence on the 31st day following the day on which the
billing was sent. Interest will be charged at the rate specified in
section 3717 of title 31 U.S.C. and will accrue from the date of the
billing. The Department reserves the right to utilize consumer
reporting agencies, and collection agencies, when appropriate, to
encourage repayment as authorized by the Debt Collection Act of 1982
(Pub. L. 97-365).
(c) Waiver or reduction of fees. (1) Documents shall be furnished
without charge, or at reduced charges if disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government, and is not primarily in the commercial interest of the
requester. To assure that the two basic requirements for waiver are
met, Commerce shall rely on the following factors in making a
determination on the fee waiver request:
(i) The subject of the request (whether the subject of the requested
records concerns the operations or activities of the government);
(ii) The informative value of the information to be disclosed
(whether the disclosure is likely to contribute to an understanding of
government operations or activities);
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure (whether disclosure of
the requested information will contribute to public understanding);
(iv) The significance of the contribution to public understanding
(whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities);
(v) The existence and magnitude of a commercial interest (whether the
requester has a commercial interest that would be furthered by the
requested disclosure);
(vi) The primary interest in disclosure (whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
primarily in the commercial interest of the requester).
(2) Additionally, a fee shall not be charged, or alternatively it may
be reduced, in the following instances:
(i) Requests for Department records made by a Federal agency, Federal
court (excluding parties), Congressional committee or subcommittee, the
General Accounting Office, or the Library of Congress, are not made
under the Act, and fees payable under this Part do not apply.
(ii) The records are requested by a state or local government, an
intergovernmental agency, a foreign government, a public international
organization, or an agency thereof, and when it is determined by a
responsible Department official that it is an appropriate courtesy, or
the records are for purposes that are in the public interest and will
promote the objectives of the Act and of the Department.
(iii) A fee shall not be charged if the allowable charges are less
than or equal to the cost of routine collection and processing of the
fee. Therefore, if the total of charges due for processing a request is
$20 or less, no fee will be charged.
(d) Payment of fees. The following conditions shall apply to payment
of fees charged under this part.
(1) A search fee provided in paragraph (b) of this section is
chargeable even when no records responsive to the request are found, or
when the records requested are determined by the responsible Department
official to be totally exempt from disclosure. If the estimated search
or duplication charges exceed $25 the requester shall be notified of the
estimated amount of search or duplication fees, unless the requester has
previously advised the Department of a willingness to pay an amount
sufficient to cover the estimated fee. Such notice shall offer the
requester the opportunity to confer with Department personnel with the
object of reformulating the request in order to reduce the cost.
(2) A requester may be required to make an advance payment (i.e.,
payment before work is commenced or continued on a request) if the
estimated or determined allowable charges that a requester may be
required to pay will exceed $250 or the requester has previously failed
to pay a fee charged in a timely manner (i.e., within 30 days of the
date of the billing).
(i) When the estimated charges exceed $250, the Department shall
notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees. If the requester has no history of prompt payment
of FOIA fees, the Department shall require an advance payment of an
amount up to the full estimated charges.
(ii) If a requester has previously failed to pay a fee charged in a
timely manner, the Department shall require the requester to pay the
full amount owed plus any applicable interest and to make an advance
payment of the full amount of the estimated fee before the Department
will process the request.
(3) Whenever the Department acts pursuant to paragraph (d)(2) of this
section, the administrative time limits prescribed in 5 U.S.C.
552(a)(6) will begin only after the agency has received payment of the
required fee.
(4) Upon the completion of processing of a request, when a specific
fee is determined to be payable and appropriate notice has been given to
the requester, the payment of such fee shall be received before the
requested records or a portion of the records are made available to the
requester.
(5) Payment of fees shall be made in cash or preferably by check or
money order payable to ''Treasury of the United States'', and they shall
be paid or sent to the unit stated in the billing notice or, if none, to
the unit handling the request. Where appropriate, the responsible
official may require that payment be made in the form of a certified
check.
(6) If an advance payment of an estimated fee exceeds the actual
total fee by $1 or more, the difference shall be refunded to the
requester.
(7) When the responsible official reasonably believes that a
requester or group of requesters acting in concert is attempting to
break a request into a series of requests for the purpose of evading the
assessment of fees, the unit may aggregate any such requests and charge
accordingly.
(e) Other charges. (1) This part does not apply to any special
statistical compilation, study, or other record requested pursuant to
statutes specifically providing for setting the level of fees for
particular types of records such as 15 U.S.C. 1525-1527. The fee for the
performance of such service is the actual cost of the work involved in
compiling the record. All monies received by the Department in payment
of the cost of this work are deposited in a separate account
administered under the direction of the Secretary, and may be used to
defray the ordinary expenses incidental to the work.
(2) The full cost of other special services will be assessed. Such
services would include:
(i) Certifying that records are true copies; and
(ii) Sending records by special methods such as express mail, etc.
(53 FR 6972, Mar. 4, 1988; 53 FR 16058, 16211, May 5, 1988)
15 CFR 4.9 Pt. 4, App. A
15 CFR 4.9 Appendix A -- Department Administrative Order 205-12 --
Public Information
Section 1. Purpose -- .01 This order, and the rules and other
materials which implement it, are designed to carry out the
responsibilities of the Department of Commerce under the Freedom of
Information Act, as amended (5 U.S.C. 552), hereinafter referred to as
''the Act.''
02. This revision updates and clarifies the provisions of the order
(dated June 29, 1967) which it supersedes, in light of the amendments to
the Act which become effective February 19, 1975. Section 7,
''Compulsory Process Requesting Documents or Testimony'' contained in
the superseded order, is now found in Department Administrative Order
218-5, to be published separately in the Federal Register.
Sec. 2 Authorities -- This order is issued pursuant to the Act: 5
U.S.C. 553; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; and
other authority vested by law in the Secretary applicable to the
dissemination of records and other information of the Department and
charges for services related thereto.
Sec. 3. Policies -- .01 The Department of Commerce, in fulfilling its
statutory missions to foster, promote and develop the foreign and
domestic commerce of the United States and to administer the specific
programs entrusted to it, regularly develops, collects, analyzes, and
disseminates facts, statistics, consensus, charts, scientific findings,
technology, and other information, and performs other services, in order
to assist the business community and other segments of the public,
according to their needs and interest. This information which the
Department develops, collates, and disseminates is generally made
readily available, either without charge or by purchase, to the affected
persons and to anyone else who may be interested, through publications,
reprints of regulations (by subscription or otherwise), press releases,
special reports, correspondence and personal interviews or conferences
with staff, speeches, and other media. It is the policy of the
Department to continue its regular practices of disseminating
information to the public prepared as a part of its program
responsibilities, to the fullest extent legally permissible and
economically feasible, and to continue to handle public requests for
such information (which may include records) in the usual manner through
its regular facilities and channels, as distinguished from those
requests for records subject to 5 U.S.C. 552(a)(3) which are to be made
and handled in accord with the rules established in and pursuant to
subsections 5.03 and 5.04 of this order.
In carrying out this policy, the officials designated in subsection
4.01 of this order shall: (a) Establish and continue an effective
program of communicating to the public the useful information obtained
or developed in the fulfillment of their organizational missions; (b)
publicize the availability of such informational materials in their
rules or by other practical means so that the public shall utilize the
regular informational programs of the Department, rather than resorting
to the formal procedures for requesting records established pursuant to
5 U.S.C. 552(a)(3); and (c) insure that any such information which is
given to individuals or special groups shall also be made available to
the general public in accord with subsections 5.01 and 5.02 of this
order, when and to the extent such information is subject to publication
or inspection under 5 U.S.C. 552(a)(1), (2), or (5).
.02 Officials responsible for determining, in accord with the Act and
this order:
(a) What materials are to be published in the Federal Register; (b)
What and how materials are to be made available for public inspection
and copying, including indexing; and (c) What and how records which are
requested are to be made available; shall, where discretion exists in
making such determinations, take an affirmative and constructive view of
the requirements of the Act. Accordingly, in making rules and specific
determinations, they shall among other factors; (1) Provide such
information to the affected public as well as enable it to deal
effectively and knowledgeably with their organizations; (2) keep within
the limits of demonstrable need the use of the legal authorities which
permit the withholding of information and records; (3) apply principles
of equal treatment to requests for records; (4) consider disclosure to
be the rule rather than the exception; (5) consider the public
convenience as well as the efficient conduct of their organizations'
business; (6) act in a timely manner; and (7) be guided by materials
prepared by the Department of Justice and the Office of General Counsel
of the Department, and by applicable court decisions.
Sec. 4. Delegation of authority -- .01 The Secretary of Commerce is
responsible for the effective administration of the Act and other laws
applicable to the dissemination of records and other information of the
Department. Aside from the Secretary's retaining authority for his
immediate office, or as he otherwise may act, authority is hereby
delegated to the following officials of the Department to decide
initially whether or not to make publicly available records and other
information subject to the Act which are in the possession of their
organizations, in accord with the provisions of the Act, this order and
rules supplementing it, other applicable law, and as may be otherwise
provided by the Secretary:
a. Secretarial Officers, for their respective offices and for the
Department staff units reporting to them (as defined in Department
Organization Order 1-1, ''Mission and Organization of the Department of
Commerce'' (35 FR 19704, December 27, 1970)), as amended.
b. Heads of operating units of the Department (as defined in
Department Organization Order 1-1).
.02 Although the officials having authority under subsection 4.01 of
this section may permit employees within their organizations to make
records and information publicly available under the Act, they shall
redelegate authority initially to deny such records and information only
to a limited number of officers or employees under them without power of
further redelegation.
.03 The authority to make final decisions on appeal of initially
denied requests for records is hereby delegated to the General Counsel
of the Department without power of further redelegation.
.04 The General Counsel of the Department, and his designees, shall
provide legal services to enable the officials designated in subsections
4.01 and 4.02 of this section to discharge their respective duties and
responsibilities under and pursuant to this order, and shall make legal
interpretations of questions arising thereunder. The General Counsel
shall also act as the focal point within the Department for consultation
or other communication with the Department of Justice with respect to
any actions to be taken in connection with the Act, this order, and
rules implementing it.
.05 Program officials shall provide all support and assistance
necessary to enable the General Counsel to perform the functions
delegated in this order. This shall include (i) keeping the Office of
the General Counsel informed of Freedom of Information Act requests
received by the unit; (ii) providing prompt responses to Office of the
General Counsel instructions, or requests for assistance; (iii) as
requested, allowing the Office of the General Counsel access to relevant
records; and (iv) promptly consulting with the Office of the General
Counsel regarding any legal issues which arise during the processing of
a request.
b. The Office of the Inspector General shall comply with the
provisions of this order except that the Office of the Inspector General
need not allow the Office of the General Counsel access to records to
the extent that (i) information contained therein might reveal the
identity of a confidential source, or (ii) the Inspector General
determines that disclosure to Office of the General Counsel would
interfere with an audit, investigation, or prosecution.
Sec. 5. Functions and responsibilities -- .01 Publication in the
Federal Register (5 U.S.C. 552(a)(1) of the Act).
a. The following information of the Department and its component
organizations shall be separately stated and currently published in the
Federal Register for the guidance of the public.
1. Descriptions of the central and field organizations and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may secure information, make submittals or request, or obtain
decisions;
2. Statements of the general course and method by which 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 their agencies; and
5. Each amendment, revision, or repeal of the foregoing.
b. The information contained in paragraph 5.01a of this subsection
shall be published in the Federal Register in the form of or included
in:
1. Department Organization Orders, including any supplements and
appendices thereto. The Assistant Secretary for Administration shall
cause such materials to be published in the Federal Register. The
Department Organization Orders and their supplements and appendices
contain, among other information, the descriptions of the various
organizations, the descriptions of the various organizations of the
Department, and in many instances the other information indicated in
subparagraphs 5.01a.1 and 2. of this subsection.
2. Department Administrative Orders, including any supplements or
appendices thereto.
3. Other Office of the Secretary or operating unit directives.
4. Rules and orders contained in the various Titles of the Code of
Federal Regulations assigned to the Office of the Secretary and to the
operating units of the Department.
5. General notices.
6. Other forms of publications when incorporated by reference in the
Federal Register with the approval of the Director of the Federal
Register.
c. Officials responsible for determning what materials are to be
submitted for publication in the Federal Register pursuant to 5 U.S.C.
552(a)(1) shall consider, among other factors, in making such
determinations:
1. That those matters which fall within one or more of the exemptions
contained in 5 U.S.C. 552(b) need not be published. However, it may be
decided, in accord with subsection 3.02 of this order, that publication
even of such matters should in some instances and respects be made.
2. That matters which are reasonably available to the class of
persons affected thereby and which have been or are to be incorporated
by reference in the Federal Register with the approval of the Director
of the Federal Register are deemed to be published in the Federal
Register. In such cases, the standards and procedures for incorporation
by reference established by the Director of the Federal Register (See 1
CFR Part 51; 37 FR 23614, November 4, 1972) shall be followed.
3. That matters to which members of the public do not have to resort
or by which they are not to be adversely affected, or which do not
impose burdens, obligations, conditions, or limitations upon persons
affected, need not be published in the Federal Register under 5 U.S.C.
552(a)(1). However, the policy considerations expressed in subsection
3.02 of this order may in certain instances suggest the publication of
such matters.
4. That no person shall in any manner be required to resort to or be
adversely affected by any matter required to be published in the Federal
Register under 5 U.S.C. 552(a)(1) when it is not so published. However,
actual and timely notice given to such a person having such actual
notice is equally bound as one having constructive notice by Federal
Register publication. Nevertheless, such actual notice should as a
matter of policy be in addition to, rather than instead of, publication.
5. That ''currently publish'' as provided in 5 U.S.C. 552(a)(1) means
promptly at the time that the action occurs.
.02 Availability of materials for inspection and copying; indexing
(5 U.S.C. 552(a)(2) and (5) of the Act).
a. The head of each operating unit of the Department shall for his
unit, and the Assistant Secretary for Administration shall for the
officials, officers and units referred to in paragraph 4.01a. of this
order, in accordance with rules which they shall cause to be published
in the Federal Register, make available for public inspection and
copying the following materials, unless such materials are promptly
published and copies offered for sale:
1. Final opinion (including concurring and dissenting opinions), as
well as orders, made in the adjudication of cases.
2.. Those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register.
3. Administrative staff manuals and instructions to staff that affect
a member of the public.
4. Where applicable, a record of the final votes of each member of an
agency in every proceeding when the agency has more than one number.
(The terms ''agency proceeding'' and ''agency'' are defined in 5 U.S.C.
551, as amended by 5 U.S.C. 552(e).
5. An index, currently maintained, which provides identifying
information for the public as to any matter (a) which has been issued,
adopted, or promulgated since July 4, 1967, and (b) which is required to
be made available or published pursuant to 5 U.S.C. 552(a)(2). It is
hereby determined, subject to subsequent redetermination by the
Assistant Secretary for Administration pursuant to changed
circumstances, that it is unnecessary and impracticable to publish
quarterly or more frequently and distribute (by sale or otherwise)
copies of each such index and supplements thereto. Copies of such
indexes shall be provided upon request at a cost not to exceed the
direct cost of duplication.
b. The rules published in the Federal Register under paragraph 5.02a
of this subsection shall include provisions for the time, place, copying
fees, and any procedures applicable to making such materials available
at facilities or otherwise for public inspection and copying.
c. The Assistant Secretary for Administration shall establish and
maintain a centralized public reference facility for the inspection and
copying of materials subject to 5 U.S.C. 552(a)(2) and (5). The head of
an operating unit may, with the approval of the Assistant Secretary for
Administration, establish for this organization a separate place for
making the materials subject to 5 U.S.C. 552(a)(2) and (5) available to
the public for inspection and copying, and publish appropriate rules
applicable thereto approved by the Assistant Secretary for
Administration.
d. The officials responsible for determining the materials to be
available for public inspection and copying under paragraph 5.02a of
this subsection shall consider, among other factors, in promulgating the
published rules or in making such determinations:
1. That those matters which fall within one or more of the exemptions
contained in 5 U.S.C 552(b) are not required to be made available.
Nonetheless, they may be made available in any particular respect if it
is determined that this would better serve the public interest.
2. That they may, to the extent required to prevent a clearly
unwarranted invasion of personal privacy, delete identifying details
from an opinion, statement of policy, interpretation, staff manual or
instruction, or other materials, when it is made available or published.
However, in each case the justification for the deletion shall be
explained fully in writing. Such action is to be taken in order to
provide the public with those information materials called for under 5
U.S.C. 552(a)(2), while at the same time protecting the medical, family
or other personal privacy rights of the individuals involved in such
agency materials. Agency explanations for deletions of identifying
details should provide such information as can be furnished without
defeating the purpose of the deletion provision. When an agency has a
number of recurring deletion situations, it may in its implementing
rules or other public notice specify the applicable reasons for such
deletions, and cite the rule in the preamble to each of the covered
documents, rather than contain the complete explanation in each
document.
3. That distinction should be made between those materials (a) which
do and which do not affect any member of the public, and (b) which are
and which are not to be relied upon, used or cited as precedent by the
agency against any private person or party. Those materials specified
in 5 U.S.C. 552(a)(2) which affect the public and which have
precedential effect shall be made available for inspection and copying,
and also included in the index, as provided in this order, However,
since the basic purpose of this section of the Act is to disclose to the
interested members of the public essential information which will enable
them to deal effectively and knowingly with an agency, materials which
provide such information should be included in the appropriate
facilities.
4. That an advisory interpretation made by an agency on a specific
set of facts which is requested by and addressed to a particular person
need not be made generally available under paragraph 5.02a. of this
subsection if it is not to be cited or relied upon by any official of
the agency as a precedent in the disposition of other cases.
Nonetheless, if it may serve any useful public purpose, any such
interpretation may be made publicly available upon the deletion of
identifying details to the extent necessary to protect personal privacy.
5. That the agency is not precluded using as precedent against any
affected person those matters specified in subparagraphs 1.3. of
paragraph 5.02a of this subsection as to which a person has actual and
timely notice of the terms thereof, even though they have not been
indexed and either made available or published. If the agency practice
is to furnish such notices, it is more desirable that it do so in
addition to, rather than instead of, indexing and making them publicly
available hereunder, in recognition of the purpose of 5 U.S.C. 552(a)(2)
to make the end product materials of the administrative process
available to the public.
6. That matters which are published in the Federal Register in
accordance with 5 U.S.C. 552(a)(1) are not required to be made available
under 5 U.S.C. 552(a)(2) for public inspection and copying nor need they
be indexed (the Federal Register has its own index). However, to the
extent that it would be useful and practicable to index and provide such
published information to the public for ready reference, it should be
included.
7. That an index provides sufficient identifying information for the
public if a person who exercises diligence may familiarize himself with
the materials through use of the index.
8. That an alternative to making materials available to the public
for inspection and copying is to promptly publish and offer them for
sale to the public. Such published materials, however, are subject to
the indexing requirement. If it would help the public and it is
practical to do so, a copy of such published materials should also be
made available in any facilities established for public inspection, and
if permissible, copies of the publications should be made available for
sale therein.
9. That materials required to be made available or published under 5
U.S.C. 552(a)(2), but which were adopted or issued by an agency prior to
July 4, 1967, may at any time be used, relied upon or cited as precedent
by the agency irrespective of whether they are listed in the agency's
index. Officials, however, may, to the extent they deem it practicable
and helpful to the public, also index such materials in whole or in
part.
03. Availability of records upon request (5 U.S.C. 552(a) (3), (4),
and (6) of the Act).
a. The Assistant Secretary for Administration shall cause to be
published in the Federal Register rules stating the time, place, fees
and procedures to be followed, with respect to making records of the
Department promptly available to any person requesting them, as provided
in 5 U.S.C. 552(a) (3), (4) and (6).
b. The rules published in the Federal Register pursuant to paragraph
5.03a. of this subsection shall, insofar as is practicable, be complete,
precise, and workable, suitable for the information of agency personnel
and the public alike, and shall include provisions, among other matters,
for the following:
1. Information as to the place to make requests, when requests will
be deemed received by the Department for purposes of the time limits
contained in 5 U.S.C. 552(a)(6), the timely handling of requests, and
the making of initial determinations concerning the availability of the
records requested.
2. Timely notice to the requester, as applicable, that a requested
record does not exist, has been disposed of as provided by law, or is
not in the possession or control of the Department.
3. A procedure whereby the time limits for responding to requests for
records or appeals from denials may be extended, as authorized by 5
U.S.C. 552(a)(6)(B), and wherein a failure of the agency to respond in a
timely manner may be considered a denial of the request.
4. Consultation with other operating units or offices within the
Department, or with other Federal executive agencies, when there is a
mutual agency interest or concern in the record or its contents and
there is a question as to its availability. The determination as to
availability should be made by the predominantly interested agency, if
there is one. When a record requested from the Department is the
exclusive concern of another executive agency, the request shall be
promptly referred to that other agency, and the requester so notified.
5. A procedure for administrative appeal of a request for a record
initially denied in whole or in part. The appeal procedure shall
include provisions which insure that: (i) The requester may file an
appeal, in writing, within thirty days of receipt of an initial denial;
(ii) an appeal shall be considered received when properly addressed to
the General Counsel: (iii) appeals shall be decided without right of
the requester for a personal appearance, oral argument, or hearing;
(iv) timely decisions on appeals or other notices concerning them shall
be made in writing, and communicated to the requester; (v) if the
decision is wholly or partly in favor of the requester, the General
Counsel shall make the particular records of information available to
the requester or order that such be done; and to the extent that the
decision is adverse to the requester, it shall briefly state the reason
for the decision and the identity of the official responsible for making
it, (vi) whenever applicable, requesters shall be effectively notified
of their right to seek judicial review.
6. A schedule of fees as authorized by the Act, with procedures which
(i) put requesters of records on timely notice as to substantial search
and copying fees estimated to be incurred with respect to a request;
(ii) attempt to insure that requester pay the chargeable fees for work
to be done; (iii) which provide for appropriate waiver or reduction of
fees; and (iv) which do not intend to discourage requests for records
under the Act. Work, services, publications, or documents which the
agency as part of its regular mission has been performing or producing
or will be performed or produced for members of the public or for those
who are engaged in the transaction of official business of or with the
Government, without charge, by user charge, or by publication or
subscription charge, are to be distinguished from those records properly
requested under 5 U.S.C. 552(a)(3) and the fees charged thereunder.
c. The officials designated in subsections 4.01 and 4.02 of this
order who are responsible for initially determining whether any records
properly requested under the Act may be made available, shall include in
their consideration:
1. Whether the records are of the type referred to in subsection 3.01
of this order, and the request is to be handled in accord with the
policy set forth therein;
2. Whether the records are subject to 5 U.S.C. 552(a) (1), (2), or
(5) and have been otherwise made publicly available pursuant to
paragraphs 5.01a or 5.02a of this section;
3. Whether the requester has complied with the published rules
covering the making of requests and the payment of fees;
4. Whether the records or information contained in them are matters
which fall within one or more of the exemptions contained in 5 U.S.C.
552(b), and if so whether they are not to be disclosed or whether, if
such discretion exists, it would nevertheless be in the public interest
to make the record or information available in whole or in part;
5. Whether any reasonably segregable portion of the record can be
disclosed after deletion of the portions which it is determined should
not be disclosed.
d. The officials who establish a facility as provided in paragraph
5.02 of this section may utilize the facility to:
1. Receive and assist in processing requests for records;
2. Receive from officials the requested records which are made
available, maintain custody of them and supervise their inspection and
copying by requesters;
3. Arrange for making certified and other copies of available
records;
4. Collect and account for fees established for services connected
with the requests;
5. Return records after inspection to their place of custody;
6. Act as a central communication center between the requesters and
the organizations involved in recordkeeping and officials making
determinations as to their availability; and
7. Provide reasonable assistance to persons requesting records,
including explanations of the applicable procedure and other rules, and
making referrals to sources of information available under regular
informational programs of the Department.
e. The Assistant Secretary for Administration shall establish such
standard forms, procedures and instructions as he deems necessary for
processing requests for records, maintaining records of related
expenditures, and obtaining information for the Departmental report
required by 5 U.S.C. 552(d).
04. Special review requirements. -- a. The General Counsel or one
of his designees shall be consulted before any initial denial is issued.
b. As provided in paragraph 7.03c. of DAO 205-12, the Operating Unit
Public Affairs Office shall receive a copy of each request at the same
time as the Action Office. If the Public Affairs Officer wishes to
monitor and/or comment on any response to a particular request prior to
transmittal, the Officer shall notify the Action Office within three (3)
working days after receiving a copy of the request. The Action Office
shall cooperate with the Public Affairs Officer in this effort; and
give due consideration to any recommendations or comments from the
Officer. In addition, the Director of the Office of Public Affairs or
his or her designee shall be informed before any decision on an appeal
from an initial denial is issued.
c. As provided in Part B, Chaper IV, subsection 5.06f. of the
Department's Handbook of Security Regulations and Procedures, appeals of
initial denials based, even in part, on the ground that the matter is
exempted from disclosure under 5 U.S.C. 552(b)(1) (classified
information) shall be referred to the Departmental Information Security
Program Committee. That Committee shall conduct a declassification
review and determine if the record(s) involved may be made available to
the public.
d. Whenever, on appeal from an initially denied request, the General
Counsel and the concerned Secretarial Officer or operating unit head
cannot agree on whether applicable exemptions should be waived, as
provided in subsection 03c.4. of this section, the matter shall be
promptly referred to the Secretary for resolution.
.05 Annual Report (5 U.S.C. 552(d) of the Act).
a. The Assistant Secretary for Administration shall prepare and
transmit to the Congress on or before March 1 of each year the annual
report by the Act.
b. To assist in the preparation of the report, each official
specified in subsection 4.01 of this order, shall, no later than January
31 of each year, provide the Assistant Secretary for Administration with
the information specified in the Act and such other information as he
may require.
Sec. 6. Supplementary rules -- .01 The Secretary may from time to
time issue such supplementary rules or instructions as he deems
appropriate to carry out the purposes of this order.
.02 Each duly authorized official may issue rules covering his
respective area of responsibility designed to implement this order, and
which are consistent herewith and with any rules issued by the Assistant
Secretary for Administration.
Sec. 7. Effect on other orders. This order supersedes Department
Administrative Order 205-12 of June 29, 1967, as amended. Any other
prior orders, rules, or instructions, or parts thereof, the provisions
of which are inconsistent or in conflict with the provisions of this
order, are hereby constructively amended or superseded.
15 CFR 4.9 Pt. 4, App. B
15 CFR 4.9 Appendix B -- Freedom of Information Public Facilities and
Addresses for Requests for Records
The following public reference facilities have been established
within the Department of Commerce for: (a) Public inspection and
copying of materials from various units within the Department under 5
U.S.C. 552(a)(2), or determined to be available for response to requests
made under 5 U.S.C.(a)(3); (b) furnishing information and otherwise
assisting the public concerning Departmental operations under the
Freedom of Information Act; and (c) receipt and processing requests for
records under 5 U.S.C. 552(a)(3).
Commerce units that have separate mailing addresses are noted below.
Requests should be addressed to the unit which the requester knows or
has reason to believe has possession, control, or has primary concern
with the records sought. Otherwise, requests should be addressed to the
Central Reference and Records Inspection Facility.
Department of Commerce Freedom of Information Central Reference and
Records Inspection Facility, U.S. Department of Commerce, room 6020,
Herbert C. Hoover Building, 14th Street between Constitution Avenue and
Pennsylvania, NW., Washington, DC 20230. Phone (202) 377-4115. This
facility serves the Office of the Secretary and all other units of the
Department not identified below as explained at 15 CFR 4.4(c) and (d).
Bureau of the Census, Chief, Program and Policy Development Office, U.S.
Department of Commerce, room 2430, Federal Building 3, Washington, DC
20233. Phone (301) 763-2758.
The Bureau of the Census maintains a separate facility for inspection
of (a)(2) records. The location is room 2455, Federal Building 3,
Suitland, Maryland 20233.
Bureau of Economic Analysis, Public Reference Facility, U.S.
Department of Commerce, room 1115, Tower Building, 1401 K Street, NW.,
Washington, DC.
Mailing address: Freedom of Information Control Desk, Office of
Administration, Office of Economic and Statistical Affairs, U.S.
Department of Commerce, room 4838, Herbert C. Hoover Building, 14th
Street and Constitution Avenue, NW., Washington, DC 20230. Phone
377-3308.
Economic Development Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 7001, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-4687. Mailing address of Regional EDA
offices:
-- Philadelphia Regional Office, EDA, U.S. Department of
Commerce, Freedom of Information Request Control Desk, Liberty Square
Building; First floor, 105 South 7th Street, Philadelphia, Pennsylvania
19106.
-- Atlanta Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, suite 1820, 401 West
Peachtree Street, NW., Atlanta, Georgia 30308-3510.
-- Denver Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, room 670, 1244 Speer
Boulevard, Denver, Colorado 80204.
-- Chicago Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, 175 West Jackson Boulevard,
suite A-1630, Chicago, Illinois 60604.
-- Seattle Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, Jackson Federal Building,
room 1856, 915 Second Avenue, Seattle, Washington 98174.
-- Austin Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, Grant Building, suite 201,
611 East 6th Street, Austin, Texas 78701.
Bureau of Export Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4525, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-5653.
International Trade Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4102, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-3031.
Minority Business Development Agency, Freedom of Information Office,
U.S. Department of Commerce, room 5073, Herbert C. Hoover Building,
14th Street and Constitution Avenue, NW., Washington, DC 20230. Phone
(202) 377-2881.
The Minority Business Development Agency maintains a separate
facility for public inspection of (a)(2) records. The location is room
5078B, Herbert C. Hoover Building, Washington, DC 20230.
National Institute of Standards and Technology, Freedom of
Information Records Inspection Facility, room E106, Administration
Building, Gaithersburg, Maryland 20234. Phone (301) 975-2389.
Mailing address: National Institute of Standards and Technology,
Freedom of Information Request Control Desk, U.S. Department of
Commerce, room A-1105, Gaithersburg, Maryland 20234.
National Oceanic and Atmospheric Administration, Public Reference
Facility, room 714 WSC-5, 6010 Executive Boulevard, Rockville, Maryland
20852. Phone (301) 443-8967.
National Technical Information Service, Freedom of Information
Records Inspection Facility, room 209, Forbes Building, 5285 Port Royal
Road, Springfield, Virginia 22161. Phone (703) 487-4670.
National Telecommunications and Information Administration, Freedom
of Information Request Control Desk, U.S. Department of Commerce, room
4717, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20504. Phone (202) 377-1816.
Patent and Trademark Office, Freedom of Information Records
Inspection Facility, Public Search Room, room 1A01, Crystal Plaza 3,
Arlington, Virginia 20231. Mailing address: Patent and Trademark
Office, Freedom of Information Request Control Desk, Box 8, Washington,
DC 20231. Phone (703) 557-4035.
United States Travel and Tourism Administration, Freedom of
Information Request Control Desk, U.S. Department of Commerce, room
1524, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20230. Phone (202) 377-3812.
(56 FR 20533, May 6, 1991)
15 CFR 4.9 Pt. 4, App. C
15 CFR 4.9 Appendix C -- Officials Authorized to Make Initial Denials
of Requests for Records
The following officials of the Department have been delegated
authority to initially deny requests for records of their respective
units for which they are responsible. (The listings are subject to
change because of organizational changes or new delegations.
Accordingly, the Director for Federal Assistance and Management
Support is specifically authorized to amend or revise this appendix from
time to time in order to reflect changes.
Office of the Deputy Secretary: Associate Deputy Secretary.
Office of Business Liaison: Director.
Office of Consumer Affairs: Director.
Office of Space Commerce: Director.
Office of the Assistant Secretary for Legislative and
Intergovernmental Affairs: Deputy Assistant Secretary for Legislative
and Intergovernmental Affairs.
Office of the Inspector General: Counsel to the Inspector General.
Deputy Counsel to the Inspector General.
Office of the General Counsel: Deputy General Counsel. Assistant
General Counsel for Administration. Director of Intelligence Liaison.
Office of the Administrative Law Judge: Office Manager.
Office of Civil Rights: Director.
Office of Financial Management: Director.
Office of Federal Assistance and Management Support: Director.
Office of Federal Assistance: Director.
Office of Budget Operations: Director.
Office of Management Support: Director.
Office of Budget, Planning and Organization: Director.
Office of Management and Organization: Director.
Office of Budget: Director.
Office of Program Planning and Evaluation: Director.
Office of Personnel: Director.
Office of Personnel Operations: Director.
Office of Information Resources Management: Director.
Office of Procurement and Administrative Services: Director.
Office of Administrative Services Management: Director.
Office of Federal Property Programs: Director.
Office of Publications: Director.
Office of Security: Director.
Office of Procurement: Director.
Office of Major Systems Procurement: Director.
Office of Procurement Operations: Director.
Office of Procurement Management: Director.
Office of Small and Disadvantaged Business Utilization: Director.
Office of Administration: Director.
Bureau of Economic Analysis: Director.
Bureau of the Census: Chief, Program and Policy Development Office.
Under Secretary for Technology: Deputy Under Secretary for
Technology. Assistant Secretary for Technology Policy. Chief Counsel.
Deputy Chief Counsel.
National Institute of Standards and Technology: Director of
Administration. Deputy Director of Administration.
National Technical Information Service: Director. Associate Director
for Administration.
Chief Counsel.
Deputy Chief Counsel.
Under Secretary.
Deputy Under Secretary.
Assistant Secretary for Export Administration.
Director, Office of Technology and Policy Analysis.
Director, Office of Foreign Availability.
Director, Office of Export Licensing.
Deputy Assistant Secretary for Industrial Resource Administration.
Assistant Secretary for Export Enforcement.
Director, Office of Export Enforcement.
Director, Office of Antiboycott Compliance.
Director, Office of Enforcement Support.
International Economic Policy:
Director, Office of Policy Coordination.
Director, Office of Multilateral Affairs.
Director, Office of Africa.
Director, Office of the Near East.
Director, Office of South Asia.
Director, Office of Western Europe.
Director, Office of European Community Affairs.
Director, Office of Eastern Europe and Soviet Affairs.
Director, Office of South America.
Director, Office of Mexico and the Caribbean Basin.
Director, Office of Canada.
Director, Office of the PRC and Hong Kong.
Director, Office of the Pacific Basin.
Deputy Assistant Secretary for Japan.
Trade Development:
Director, Office of Program and Resource Management.
Director, Office of Planning and Coordination.
Director, Office of Computers and Business Equipment.
Director, Office of Microelectronics and Instrumentation.
Director, Office of Telecommunications.
Director, Office of General Industrial Machinery.
Director, Office of Special Industrial Machinery.
Director, Office of International Major Projects.
Director, Office of Trade and Investment Analysis.
Director, Office of Industrial Trade.
Director, Office of Finance and Trade Information.
Director, Office of Services Industries.
Director, Office of Export Trading Company Affairs.
Director, Office of Forest Products and Domestic Construction.
Director, Office of Metals, Minerals and Commodities.
Director, Office of Energy.
Director, Office of Chemicals and Allied Products.
Director, Office of Automotive Industry Affairs.
Director, Office of Consumer Goods.
Director, Office of Textiles and Apparel.
Deputy Assistant Secretary for Trade Adjustment Assistance.
Director, Office of Aerospace Market Development.
Director, Office of Aerospace Policy and Analysis.
Import Administration:
Director, Foreign Trade Zones Staff.
Director, Statutory Import Programs Staff.
Director, Office of Antidumping Compliance.
Director, Office of Countervailing Compliance.
Director, Office of Agreements Compliance.
Director, Office of Antidumping Investigations.
Director, Office of Countervailing Investigations.
Director, Office of Policy.
Director, Office of Accounting.
U.S. and Foreign Commercial Service:
Director, Caribbean Basin Information Center.
Director, Office of Foreign Service Personnel.
Deputy Assistant Secretary for International Operations.
Director, Office of Planning and Management.
Manager of Export Promotion Services.
Director, Office of Commercial Information Management.
Director, Office of Trade Promotion.
Deputy Assistant Secretary for Domestic Operations.
Administration:
Director, Office of Organization and Management Support.
Director, Office of Personnel.
Director, Office of Financial Management.
Director, Office of Information Resources Management.
Deputy Under Secretary for International Trade:
Deputy Assistant Secretary for Planning.
Director, Office of Public Affairs.
Director, Congressional Affairs Staff.
Freedom of Information Officer.
Under Secretary.
Assistant Secretary.
Director, Office of Public Affairs.
Director, NOAA Corps.
General Counsel.
Assistant Administrator for Ocean Services and Coastal Zone
Management.
Assistant Administrator for Fisheries.
Assistant Administrator for Weather Service.
Assistant Administrator for Environmental Satellite, Data, and
Information Service.
Assistant Administrator for Oceanic and Atmospheric Research.
Director, Environmental Research Laboratories.
Director, Office of Administration.
Director, Eastern Administrative Support Center.
Director, Central Administrative Support Center.
Director, Western Administrative Support Center.
Director, Mountain Administrative Support Center.
Deputy Assistant Secretary.
Chief Counsel.
Legal Advisor.
Solicitor, Deputy Solicitor.
Under Secretary.
Director, Office of Management and Administration.
(56 FR 50233, May 6, 1991)
15 CFR 4.9 PART 4a -- CLASSIFICATION, DECLASSIFICATION AND PUBLIC AVAILABILITY OF NATIONAL SECURITY INFORMATION
15 CFR 4.9 Subpart A -- Classification of National Security Information
Sec.
4a.1 General.
4a.2 Director, Office of Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
15 CFR 4.9 Subpart B -- Declassification
4a.6 General.
4a.7 Systematic review for declassification.
4a.8 Mandatory review for declassification.
4a.9 Requests under the Privacy Act and the Freedom of Information
Act involving classified records.
4a.10 Presidential information.
4a.11 Foreign government information.
4a.12 Public availability of declassified information.
15 CFR 4.9 Subpart C -- Access to Classified Information
4a.13 Access by persons outside the Executive branch.
4a.14 Access by industrial, educational, and commercial entities.
4a.15 Access by historical researchers and former presidential
appointees.
4a.16 Access by foreign nationals, foreign governments, international
organizations and immigrant aliens.
Authority: Sec. 5.3(b), E.O. 12356; 47 FR 14874, April 6, 1982; 47
FR 15557, April 12, 1982.
Source: 48 FR 20040, May 4, 1983, unless otherwise noted.
15 CFR 4.9 Subpart A -- Classification of National Security Information
15 CFR 4a.1 General.
Executive Order 12356 provides the only basis for classifying
information within the Department of Commerce, except as provided in the
Atomic Energy Act of 1954. The policy of the Department of Commerce is
to make information concerning its activities available to the public
consistent with the need to protect the national defense or foreign
relations as required by the interests of the United States and its
citizens. Accordingly, security classification shall be applied only to
protect the national security.
15 CFR 4a.2 Director, Office of Security.
The Director is responsible for (a) acting on all suggestions,
complaints, and appeals not otherwise resolved, concerning the
implementation and administration of E.O. 12356 and implementing
directives, and (b) deciding all appeals from denials of requests for
national security information under the Mandatory Review provision of
E.O. 12356, when the initial denial was based on continued
classification under the Order. When acting on such appeals the
Director shall confer, as necessary, with the Offices of the General
Counsel, Information Management, and Personnel. The Director may
solicit advise from various operating units as required. All
suggestions, complaints, or appeals should be addressed to the Director,
Office of Security, Room 5044, 14th Street and Constitution Avenue, NW.,
Washington, D.C. 20230.
15 CFR 4a.3 Classification levels.
Information may be classified as national security information by a
designated original classifier of the Department when it is determined
that the information concerns one or more of the categories prescribed
in E.O. 12356 and when the unauthorized disclosure of the information,
either by itself or in the context of other information, reasonably
could be expected to cause damage to the national security. The levels
established by E.O. 12356 (Top Secret, Secret, and Confidential) are the
only terms which may be applied to national security information.
Except as provided by statute, no other terms shall be used within the
Department of Commerce in conjunction with any of the three
classification levels.
15 CFR 4a.4 Classification authority.
Authority to originally classify information as Secret or
Confidential may be exercised only by the Secretary of Commerce and by
officials to whom such authority is specifically delegated. No official
of the Department of Commerce is authorized to originally classify
information as Top Secret.
15 CFR 4a.5 Duration of classification.
Information shall remain classified as long as its unauthorized
disclosure would result in damage to the national security. When it can
be determined a specific date or event for declassification shall be set
by the original classification authority at the time the information is
originally classified. Automatic declassification markings applied
under predecessor executive orders shall remain valid unless the
classification is extended by an authorized declassification authority.
Information classified under predecessor orders and marked for
declassification review shall remain classified until reviewed for
declassification under the provisions of E.O. 12356 governing systematic
review or mandatory review for declassification.
15 CFR 4a.5 Subpart B -- Declassification
15 CFR 4a.6 General.
Information that continues to meet the classification requirements
prescribed in E.O. 12356 despite the passage of time will continue to be
safeguarded. However, information which is properly classified at the
time it is developed may not necessarily require protection
indefinitely. National security information over which the Department
of Commerce exercises final classification jurisdiction shall be
declassified or downgraded as soon as national security considerations
permit. When information is determined to be no longer damaging to the
national security, it may continue to be exempt from public disclosure
by law. If so, when the information is declassified the
declassification authority shall indicate that all or portions of the
information become FOR OFFICIAL USE ONLY and shall cite the authority
which permits nondisclosure.
15 CFR 4a.7 Systematic review for declassification.
Classified information constituting permanently valuable records of
the Government, as defined by U.S.C. 2103, that is in the possession and
control of the Department of Commerce or of the Archivist of the United
States, shall be systematically reviewed for declassification. This
review shall be in accordance with systematic review guidelines
authorized by the Secretary of Commerce.
15 CFR 4a.8 Mandatory review for declassification.
(a) Requests. Classified information under the jurisdiction of the
Department of Commerce shall be reviewed for declassification upon
receipt of a request by a United States citizen or permanent resident
alien, a Federal agency, or a state or local government. A request for
mandatory review of classified information shall be submitted in writing
and describe the information with sufficient specificity to locate it
with a reasonable amount of effort. Request shall be submitted to the
Director, Office of Security, U.S. Department of Commerce, Room 5044,
14th Street and Constitution Avenue, NW., Washington, D.C. 20230.
(b) Processing requirements. (1) The Director, Office of Security,
shall acknowledge receipt of the request directly to the requester.
When a request does not satisfy the conditions of paragraph (a) of this
section, the requester shall be notified that unless additional
identifying information is provided, no further action will be taken.
The request shall be forwarded to the operating unit or office which
originated the information or which has primary interest in the subject
matter. The unit or office assigned action shall review the information
within twenty working days as prescribed below.
(2) The action office shall determine whether, under the
declassification provisions of the Department of Commerce National
Security Information Manual, the entire document or portions thereof may
be declassified. The action office shall also determine whether, if the
document or portions are declassified, withholding the information is
otherwise warranted under applicable statutes. Declassification of the
information shall be accomplished by a designated declassification
authority. Upon declassification the information shall be remarked. If
the information may not be released in whole or in part, the reviewing
official shall provide the reasons for denial by citing the applicable
provision of section 1.3 of E.O. 12356. When the classification is a
derivative decision based on classified source material of another
Federal agency, the action office shall provide the information to the
originator for review.
(3) The action office shall also determine if declassified
information is otherwise available for public release under the Freedom
of Information Act. If the information is not releasable, the reviewing
official shall advise the Director, Office of Security, that the
information has been declassified but that it is exempt from disclosure,
citing the appropriate exemption of the Freedom of Information Act and
applicable regulations.
(4) If the request for declassification is denied in whole or in
part, the requester shall be notified of the right to appeal the
determination within sixty days and of the procedures for such an
appeal. If declassified information remains exempt from disclosure
under the Freedom of Information Act, the requester shall be advised of
those appellate procedures. All denials of information under the
Freedom of Information Act must be approved by the Office of the
Assistant General Counsel for Administration.
(c) Fees. If the request requires the rendering of services for
which fees may be charged, the unit assigned action may calculate the
anticipated amount of fees to be charged and ascertain the requester's
willingness to pay the allowable charges as a precondition to taking
further action on the request in accordance with 4.9 of Department of
Commerce Freedom of Information Act rules and 4b.11 of the Department's
Privacy Act rules.
(d) Right of appeal. (1) A requester may appeal to the Director,
Office of Security, when the requested information is not declassified
and released in whole. The Director shall determine, within thirty days
after receipt of an appeal, whether continued classification of the
requested information is required in whole or in part, notify the
requester of his determination, and make available to the requester any
information determined to be releasable. If continued classification is
required under the provisions of this manual, the requester shall be
notified of the final determination and of the reasons for denial.
(2) During the declassification review of information under appeal
the Director, Office of Security, may overrule previous determinations
in whole or in part when, in his judgment, continued protection in the
interest of national security is no longer required. If the Director
determines that the information no longer requires classification, it
shall be declassified and, unless it is otherwise exempt from
disclosure, released to the requester. The Director shall advise the
original reviewing Commerce office or unit of his decision.
15 CFR 4a.9 Requests under the Privacy Act and the Freedom of
Information Act involving classifed records.
(a) The Freedom of Information Act (FOIA), Title 5 U.S.C. 552(b)(1)
and the Privacy Act of 1974 (PA), Title 5 U.S.C. 552a(k)(1), authorize
withholding of records from public availability which 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 (2) are in fact properly classified pursuant to such Executive
order.''
(b) Under the FOIA a determination on an initial request must be made
within ten working days after receipt of the request. A determination
on an appeal to an initial denial must be made within twenty working
days after receipt of an FOIA appeal; or for a PA appeal, within thirty
working days. Time limits are mandatory for an FOIA request, but are
permissive for a PA request. Except for unusual circumstances, failure
to make a determination within the stated time limits means that a
requester has exhausted the administrative remedies and may bring suit
immediately.
(c) Persons who request information under the provisions of these
Acts, and whose requests are denied on appeal, may petition the courts
to enjoin the Department of Commerce from withholding the record and, in
this event, burden is on the Department of Commerce to sustain its
actions.
(d) To assure that PA/FOIA requests involving classified records are
subjected to a thorough classification review and that a response is
made within the specified time limits, the procedures in paragraphs (e)
and (f) shall apply as well as those of DAO 205-12 ''Public
Information,'' DAO 205-14 ''Processing Requests Under the Freedom of
Information Act,'' and DAO 205-15 ''Implementing the Privacy Act of
1974.''
(e) Initial requests involving classified records:
(1) The office determined to have primary interest shall conduct a
declassification review of the information as prescribed in 4a.8(b)
(2), (3), and (4).
(2) If the information is subsequently declassified, the action
office shall consult with the Office of the Assistant General Counsel
for Administration to determine releasibility with consideration only
for the legality of release within the purview of PA/FOIA.
(3) If the record warrants continued classification, the action
office shall coordinate with the Office of the Assistant General Counsel
for Administration and so advise the requester, and further advise the
requester of the right of appeal.
(4) If the classification review cannot be completed within the
prescribed time limit, due to unusual circumstances, the action office
shall advise the requester. An extension of time shall be arranged in
accordance with the FOIA and implementing Commerce PA/FOIA rules.
(f) Receipt of an appeal for reconsideration of denial of a
classified record under PA/FOIA: Appeals under this section shall be
addressed to the General Counsel who shall refer the record(s) to the
Director, Office of Security, for a declassification review. The
Director may overrule previous determinations in whole or in part when,
in his judgment, continued protection in the interest of national
security is no longer required. If the information under review no
longer requires classification, it shall be declassified. The Director
shall advise the General Counsel of his decision.
15 CFR 4a.10 Presidential information.
Information originated by the President, by the White House Staff, by
committees, commissions, or boards appointed by the President, or by
others specifically providing advice and counsel to a President or
acting on behalf of a President is exempted from the provisions of
mandatory review for declassification, except as consistent with
applicable laws that pertain to presidential papers or records.
15 CFR 4a.11 Foreign government information.
Requests for mandatory review for declassification of foreign
government information shall be processed as prescribed in 4a.8(b).
Consultation with the foreign source of the information through
appropriate channels may be required prior to final action on the
request.
15 CFR 4a.12 Public availability of declassified information.
A fundamental policy of the Department of Commerce is to make
information available to the public to the maximum extent permitted by
law. Information which is declassified, for any reason, loses its
protective status in the interest of national security. Accordingly,
declassified information shall be handled in every respect on the same
basis as all other unclassified information.
15 CFR 4a.12 Subpart C -- Access to Classified Information
15 CFR 4a.13 Access by persons outside the Executive branch.
Department of Commerce classified information may be made available
to persons outside the Executive Branch provided that (a) they are
engaged in historical research projects or previously have occupied
policy-making positions to which they were appointed by the President,
or (b) the information is necessary for their performance of a function
related to a contract or other agreement with the U.S. Government. The
Director, Office of Security, shall determine, prior to the release of
classified information under this provision, the propriety of such
action in the interest of national security and obtain assurance of the
recipient's trustworthiness and need to know.
15 CFR 4a.14 Access by industrial, educational and commercial entities.
Bidders, contractors, grantees, educational, scientific or industrial
organizations may receive classified information under the procedures
prescribed in the Department of Defense Industrial Security Manual.
15 CFR 4a.15 Access by historical researchers and former presidential
appointees.
(a) Persons who are engaged in historical research projects or who
have previously occupied policy-making positions to which they were
appointed by the President may be authorized access to classified
information provided that the head of the component with classification
jurisdiction over the information:
(1) Makes a written determination that access is consistent with the
interests of national security;
(2) Is assured by the Director, Office of Security, that the
requestors have an appropriate determination of trustworthiness as a
precondition to access;
(3) Obtains written agreements from requestors to safeguard the
information to which they are given access in accordance with these
regulations;
(4) Obtains written consent to a review by the Department of Commerce
of their resultant notes and manuscripts for the purpose of determining
that no classified information is contained therein; and
(5) Limits access granted to former Presidential appointees to items
that the person originated, reviewed, signed, or received while serving
as a Presidential appointee.
(b) The material requested should be clearly identified so that it
can be located and compiled with a reasonable amount of effort. If the
access requested by historical researchers or former Presidential
appointees requires the rendering of services for which fair and
equitable fees may be charged, the requestor shall be notified.
(c) The provisions of this section apply only to classified
information, or any part of it, originated by the Department of Commerce
or information that is now in the sole custody of the Department.
Otherwise, the researcher shall be referred to the classifying agency.
Operating units providing information under this section shall maintain
custody of classified information at a Commerce facility.
15 CFR 4a.16 Access by foreign nationals, foreign governments,
international organizations and immigrant aliens.
Foreign nationals employed by the Department of Commerce may be
granted access to classified information originated within the
Department only for the specific classified project to which they are
assigned and only after they have met those requirements set forth in
DAO 207-3, ''Security Requirements for Research Associates, Guest
Workers and Trainees,'' and Appendix B of DAO 207-4, ''Security and
Suitability Investigations of Personnel.'' If a need for access by
foreign nationals (other than employees) is indicated, the Director,
Office of Security, shall be consulted for decision on a case-by-case
basis.
15 CFR 4a.16 PART 4b -- PRIVACY ACT
Sec.
4b.1 Purpose and scope.
4b.2 Definitions.
4b.3 Procedures for inquiries pertaining to individual records in a
record system.
4b.4 Times, places, and requirements for identification of
individuals making requests for access.
4b.5 Disclosure of requested information to individuals.
4b.6 Special procedures: Medical records.
4b.7 Request for correction or amendment to record.
4b.8 Agency review of request for correction or amendment of record.
4b.9 Appeal of initial adverse agency determination on correction or
amendment.
4b.10 Disclosure of record to person other than the individual to
whom it pertains.
4b.11 Fees.
4b.12 Penalties.
4b.13 General exemptions.
4b.14 Specific exemptions.
Appendix A -- Officials to Receive Inquiries, Requests for Access and
Requests for Correction or Amendment
Appendix B -- Systems of Records Noticed by Other Federal Agencies
and Applicable to Records of the Department and Applicability of This
Part Thereto
Appendix C -- Facsimile of Official Form for Inquiries and Requests
Authority: 5 U.S.C. 552a; 5 U.S.C. 553; 5 U.S.C. 552; 5 U.S.C.
301; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
Source: 40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975;
40 FR 51168, Nov. 3, 1975, unless otherwise noted.
15 CFR 4b.1 Purpose and scope.
(a) The purpose of this part is to establish policies and procedures
for implementing the Privacy Act of 1974 (Pub. L. 93-579), particularly
5 U.S.C. 552a as added by the Act. The main objectives are to
facilitate full exercise of rights conferred on individuals under the
Act and to ensure the protection of privacy as to individuals on whom
the Department maintains records in systems of records under the Act.
The Department accepts the responsibility to act promptly and in
accordance with the Act upon receipt of any inquiry, request or appeal
from a citizen of the United States or an alien lawfully admitted for
permanent residence into the United States, regardless of the age of the
individual. Further, the Department accepts the obligations to maintain
only such information on individuals as is relevant and necessary to the
performance of its lawful functions, to maintain that information with
such accuracy, relevancy, timeliness, and completeness as is reasonably
necessary to assure fairness in determinations made by the Department
about the individual, to obtain information from the individual to the
extent practicable, and to take every reasonable step to protect that
information from unwarranted disclosure. The Department will maintain
no record describing how an individual exercises rights guaranteed by
the First Amendment unless 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. An
individual's name and address will not be sold or rented by the
Department unless such action is specifically authorized by law;
however, this provision shall not be construed to require the
withholding of names and addresses otherwise permitted to be made
public.
(b) This part applies to all units in the Department in order to
assure the maximum amount of uniformity and consistency within the
Department in its implementation of the Act. The units of the
Department may promulgate supplementary orders and rules not
inconsistent with this part.
(c) The Assistant Secretary for Administration is delegated
responsibility for maintaining this part, for issuing such orders and
directives internal to the Department as are necessary for full
compliance with the Act, and for effecting publication of all required
notices concerning systems of records.
(d) Matters outside the scope of this part include the following:
(1) Requests solely under the Freedom of Information Act (5 U.S.C.
552) and Part 4 of this title;
(2) Requests involving information pertaining to an individual which
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record where a grievance procedure is
available to the individual either by regulation or by provision in a
collective bargaining agreement with the Department or a unit of the
Department, and the individual has initiated, or has expressed in
writing the intention of initiating, such grievance procedure. An
individual selecting the grievance procedure waives the use of the
procedures in this part to correct or amend a record; and,
(4) Requests for employee-employer services and counseling which were
routinely granted prior to enactment of the Act, including, but not
limited to, test calculations of retirement benefits, explanations of
health and life insurance programs, and explanations of tax withholding
options.
(e) The selection of the appropriate method for processing an
individual's request for records depends on the status or capacity of
the individual, the wording of the request and the character of the
records requested. The Department anticipates the following situations
and will undertake processing as indicated:
(1) Requester is the individual to whom the record pertains and the
requester expressly states only that the request is under the Act -- The
request will be processed under the Act and this part;
(2) Requester is the individual to whom the record pertains and the
requester expressly states only that the request is under the Freedom of
Information Act -- The request will be processed under the Freedom of
Information Act and the Department's implementing regulations (Part 4 of
this chapter);
(3) Requester is the individual to whom the record pertains and the
requester expressly states that the request is under both the Act and
the Freedom of Information Act -- The request will be processed
concurrently under both statutes and the Department's respective
implementing regulations. For such dual requests the Department will
follow the fee provisions under the Act and this part, and follow the
time limits under the Freedom of Information Act and Part 4 of this
title;
(4) Requester is the individual to whom the record pertains and the
requester fails to specify whether the request is under the Act or the
Freedom of Information Act or both -- The Department will respond to the
requester and ask for clarification of the requester's intention as to
processing. The request will not be deemed to have been ''received''
for purposes of measuring time periods for response until the
clarification actually has been received by the appropriate official of
the Department; and,
(5) Requester (i) is not an individual or (ii) is an individual but
not the individual to whom the record pertains or one asserting
parentage or guardianship as permitted under the Act -- The request will
be processed under the Freedom of Information Act and the Department's
implementing regulations or under other applicable procedures.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.2 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part:
(1) The term Act means the ''Privacy Act of 1974,'' Pub. L. 93-579.
(2) The term appeal means the request by an individual that an
initial denial of a request for correction or amendment by that
individual be reviewed and reversed.
(3) The term Department means the Department of Commerce.
(4) The term inquiry means either a request for general information
regarding the Act and this part or a request by an individual (or that
individual's parent or guardian) that the Department determine whether
it has any record in a system of records which pertains to that
individual.
(5) The term person means any human being and also shall include but
not be limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private
organizations.
(6) The term Privacy Officer means those officials, identified in
Appendix A to this part, who are authorized to receive and act upon
inquiries, requests for access, and requests for correction or
amendment.
(7) The term request for access means a request by an individual to
see a record which is in a particular system of records and which
pertains to that individual.
(8) The term request for correction or amendment means the request by
an individual that the Department change (either by correction,
amendment, addition or deletion) a particular record in a system of
records which pertains to that individual.
(9) The term unit of the Department and unit means the office of the
Secretary of Commerce and operating units of the Department as defined
in Department Organization Order 1-1, ''Mission and Organization of the
Department of Commerce'' (35 FR 19704, December 27, 1970).
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.3 Procedures for inquiries pertaining to individual records
in a record system.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit an inquiry to the Department. The inquiry
should be made either in person or by mail addressed to the appropriate
Privacy Officer identified in Appendix A to this part or to the official
identified in the notification procedures paragraph of the systems of
records notice published in the Federal Register. If an individual
believes the Department maintains a record pertaining to that individual
but does not know which system of records might contain such a record
and/or which unit of the Department maintains the system of records,
assistance in person or by mail will be provided at the first address
listed in Appendix A to this part. The offices of Privacy Officers are
open to the public between the hours of 9:00 a.m. and 4:00 p.m., Monday
through Friday (excepting holidays).
(b) The processing of inquiries submitted by mail will be facilitated
if the words ''PRIVACY ACT INQUIRY'' appear in capital letters on the
face of the envelope.
(c) The Department has an official form for making inquiries and
requests, a facsimile of which is Appendix C to this part. Its use is
urged. Copies may be obtained by contacting any of the officials in
Appendix A to this part. Copies also may be obtained by contacting any
facility of the Department which offers direct services to the public.
Please consult your telephone directory under the listing ''United
States Government -- Commerce Department.''
(d) If, for some reason, an individual is unable to use the
Department's official form, the letter should bear the words ''PRIVACY
ACT INQUIRY'' in capital letters at the top. If the inquiry is for
general information regarding the Act and this part, no particular
information is required. If the inquiry is a request that the
Department determine whether it has, in a given system of records, a
record which pertains to the individual, the following information
should be submitted:
(1) Name of individual whose record is sought;
(2) Individual whose record is sought is either a U.S. citizen or an
alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of employment,
etc.);
(4) Record sought, by description and by record system name, if
known;
(5) Action requested (that is, send information on how to exercise
rights under the Act; does requested record exist; access to requested
record; or copy of requested record);
(6) Copy of court guardianship order or minor's birth certificate, as
provided in 4b.4(f)(3), but only if requester is guardian or parent of
individual whose record is sought;
(7) Requester's name (printed), signature, address, and telephone
number (optional);
(8) Date; and,
(9) Certification of request by notary or other official, but only if
(i) request is for notification that requested record exists, for access
to requested record or for copy of requested record; (ii) record is not
available to any person under 5 U.S.C. 552; and (iii) requester does
not appear before an employee of the Department for verification of
identity.
The Department reserves the right to require compliance with the
identification procedures appearing at 4b.4(f) where circumstances
warrant.
(e) Any inquiry which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraphs (b)
and (d) of this section will be so addressed and marked by Department
personnel and forwarded immediately to the responsible Privacy Officer.
An inquiry which is not properly addressed by the individual will not be
deemed to have been ''received'' for purposes of measuring time periods
for response until actual receipt by the Privacy Officer. In each
instance when an inquiry so forwarded is received, the Privacy Officer
shall notify the individual that his or her inquiry was improperly
addressed and the date when the inquiry was received at the proper
address.
(f)(1) Each inquiry received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond
within ten days (excluding Saturdays, Sundays and holidays) of the date
of receipt. If a response cannot be made within ten days, the Privacy
Officer shall send an acknowledgment during that period providing
information on the status of the inquiry and asking for such further
information as may be necessary to process the inquiry. The first
correspondence sent by the Privacy Officer to the requester shall
contain the Department's control number assigned to the request, as well
as a note that the requester should use that number in all future
contacts in order to facilitate processing. The Department shall use
that control number in all subsequent correspondence.
(2) If the Privacy Officer fails to send an acknowledgment within ten
days, as provided above, the requester may ask the General Counsel, to
take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(g) An individual shall not be required to state a reason or
otherwise justify his or her inquiry.
(h) Special note should be taken of the fact that certain agencies
are responsible for publishing notices of systems of records having
Government-wide application to other agencies, including the Department.
The agencies known to be publishing these general notices and the types
of records covered therein appear in Appendix B to this part. These
general notices do not identify the Privacy Officers in the Department
to whom inquiries should be presented or mailed. The provisions of this
section, and particularly paragraph (a) of this section, should be
followed in making inquiries with respect to such records. Such records
in the Department are subject to the provisions of this part to the
extent indicated in Appendix B to this part. The exemptions, if any,
determined by the agency publishing a general notice shall be invoked
and applied by the Department after consultation, as necessary, with
that other agency.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.4 Times, places, and requirements for identification of
individuals making requests for access.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit a request for access to records to the
Department. The request should be made either in person or by mail
addressed to the responsible Privacy Officer identified in Appendix A to
this part. The offices of Privacy Officers are open to the public
between the hours of 9:00 a.m. and 4:00 p.m. Monday through Friday
(excluding holidays).
(b) The Department has an official form for making requests, a
facsimile of which is Appendix C to this part. Its use is urged.
Copies may be obtained by contacting any of the officials listed in
Appendix A to this part. Copies also may be obtained by contacting any
facility of the Department which offers direct services to the public.
Please consult your telephone directory under the listing ''United
States Government -- Commerce Department.''
(c) The processing of requests submitted by mail will be facilitated
if the words ''PRIVACY ACT REQUEST'' appear in capital letters on the
face of the envelope. If, for some reason, an individual is unable to
use the Department's official form the letter should bear the words
''PRIVACY ACT REQUEST'' in capital letters at the top.
(d) Any request which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (c) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ''received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date when the request was received at the proper address.
(e) If the request follows inquiry under 4b.3 in connection with
which the individual's identity was established by the Department, the
individual need only indicate the record to which access is sought, give
the Department control number assigned to the request, and sign and date
the request. If the request is not preceded by an inquiry under 4b.3,
the procedures of either 4b.3(c) or 4b.3(d) of this part should be
followed.
(f) The requirements for identification of individuals seeking access
to records are as follows:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
(ii) A document, preferably issued for participation in a federally
sponsored program, bearing the individual's signature (for example,
unemployment insurance book, employer's identification card, national
credit card, and professional, craft or union membership card); and,
(iii) A document bearing neither the photograph nor the signature of
the individual, preferably issued for participation in a federally
sponsored program (for example, Medicaid card).
In the event the individual can provide no suitable documentation of
identity, the Department will require a signed statement asserting the
individual's identity and stipulating that the individual understands
the penalty provision of 5 U.S.C. 552a(i)(3) recited in 4b.12(a). For
the convenience of the public, and in addition to the Privacy Officers
listed in Appendix A to this part, most facilities which are open to the
public and operated by the Department outside Metropolitan Washington,
D.C. have employees authorized to determine the identity of an
individual. However, such employees are not authorized to take any
other action with respect to a request except to transmit the request to
the responsible Privacy Officer. In order to avoid any unwarranted
disclosure of an individual's records, the Department reserves the right
to determine the adequacy of proof of identity offered by any
individual, particularly when the request involves a sensitive record.
(2) Not in person. If the individual making a request does not
appear in person before a Privacy Officer or other employee authorized
to determine identity, a certificate of a notary public or equivalent
officer empowered to administer oaths must accompany the request under
the circumstances prescribed in 4b.3(d)(9). The Department's official
form for requests contains a certificate. If, for some reason, the
individual is unable to use the official form, the certificate within or
attached to the letter must be substantially in accord with the
following text:
City of ------------
County of ---------------- :ss
(Name of individual), who affixed (his) (her) signature below in my
presence, came before me, a (title), in and for the aforesaid County and
State, this ------ day of ------------ , 19 -- , and established (his)
(her) identity to my satisfaction.
My commission expires -------------- .
(Signature)
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the same
manner prescribed in either paragraph (f)(1) or (2) of this section. In
addition, such other individual shall establish his or her identity in
the representative capacity of parent or legal guardian. In the case of
the parent of a minor, the proof of identity shall be a certified or
authenticated copy of the minor's birth certificate. In the case of a
legal guardian of an individual who has been declared incompetent due to
physical or mental incapacity or age by a court of competent
jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
4b.5(f) are satisfied.
(g) When the provisions of this part are alleged to have the effect
of impeding an individual in exercising his or her right to access, the
Department will consider, from an individual making a request,
alternative suggestions regarding proof of identity and access to
records.
(h) An individual shall not be required to state a reason or
otherwise justify his or her request for access to a record.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.5 Disclosure of requested information to individuals.
(a)(1) Each request received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond
within ten days (excluding Saturdays, Sundays and holidays) of the date
of receipt. If a response cannot be made within ten days due to unusual
circumstances, the Privacy Officer shall send an acknowledgment during
that period providing information on the status of the request and
asking for such further information as may be necessary to process the
request. ''Unusual circumstances'' shall include circumstances where a
search for and collection of requested records from inactive storage,
field facilities or other establishments are required, cases where a
voluminous amount of data is involved, instances where information on
other individuals must be separated or expunged from the particular
record, and cases where consultations with other agencies having a
substantial interest in the determination of the request are necessary.
(2) If the Privacy Officer fails to send an acknowledgment within ten
days, as provided above, the requester may ask the responsible General
Counsel, to take corrective action. No failure of a Privacy Officer to
send an acknowledgment shall confer administrative finality for purposes
of judicial review.
(b) Grant of access -- (1) Notification. An individual shall be
granted access to a record pertaining to him or her, except where the
provisions of paragraph (g)(1) of this section apply. The Privacy
Officer shall notify the individual of a determination to grant access
and provide the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection.
In no event shall the earliest date be later than thirty days from the
date of notification;
(iv) The estimated date by which a copy of the record could be mailed
and the estimate of fees pursuant to 4b.11 of this part. In no event
shall the estimated date be later than thirty days from the date of
notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to the
procedures set forth in paragraph (f) of this section; and,
(vi) Any additional requirements needed to grant access to a specific
record.
(2) Methods of access. The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
(i) Inspection in person may be had in the office specified by the
Privacy Officer granting access, during the hours indicated in 4b.4(a);
(ii) Transfer of records to a Federal facility more convenient to the
individual may be arranged, but only if the Privacy Officer determines
that a suitable facility is available, that the individual's access can
be properly supervised at that facility, and that transmittal of the
records to that facility will not unduly interfere with operations of
the Department or involve unreasonable costs, in terms of both money and
manpower; and,
(iii) Copies may be mailed at the request of the individual, subject
to payment of the fees prescribed in 4b.11. The Department, at its own
initiative, may elect to provide a copy by mail, in which case no fee
will be charged the individual.
(c) Access to medical records is governed by the provisions of 4b.6.
(d) The Department shall supply such other information and assistance
at the time of access as to make the record intelligible to the
individual.
(e) The Department reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data media such as tape or disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of the Department be made available to the
individual except under the immediate supervision of the Privacy Officer
or his designee. Title 18, United States Code, section 2701(a) makes it
a crime to conceal, mutilate, obliterate, or destroy any record filed in
a public office, or to attempt to do any of the foregoing.
(f) Any individual who requests access to a record pertaining to that
individual may be accompanied by another individual of his or her
choice. ''Accompanied'' includes discussion of the record in the
presence of the other individual. The individual to whom the record
pertains shall authorize the presence of the other individual in writing
and shall include the name of the other individual, a specific
description of the record to which access is sought, the Department
control number assigned to the request, the date and the signature of
the individual to whom the record pertains. The other individual shall
sign the authorization in the presence of the Privacy Officer. An
individual shall not be required to state a reason or otherwise justify
his or her decision to be accompanied by another individual during
personal access to a record.
(g) Initial denial of access -- (1) Grounds. Access by an individual
to a record which pertains to that individual will be denied only upon a
determination by the Privacy Officer that:
(i) The record is exempt under 4b.13 and 4b.14 or exempt by
determination of another agency publishing notice of the system of
records, as described in 4b.3(h);
(ii) The record is information compiled in reasonable anticipation of
a civil action or proceeding;
(iii) The provisions of 4b.6 pertaining to medical records
temporarily have been invoked; or,
(iv) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Officer shall give notice of denial of
access to records to the individual in writing and shall include the
following information:
(i) The Privacy Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
the Department is available, the notice shall state that the denial is
administratively final; and,
(v) If stated to be administratively final within the Department, the
individual's right to judicial review provided under 5 U.S.C.
552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. When an initial denial of a request is
issued by the Privacy Officer, the individual's opportunities for
further consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the
alternative:
(A) If the individual contests the application of the exemption to
the records, review procedures in 4b.5(g)(3)(ii) shall apply; or,
(B) If the individual challenges the exemption itself, the procedure
is a petition for the issuance, amendment, or repeal of a rule under 5
U.S.C. 553(e). If the exemption was determined by the Department, such
petition shall be filed with the Assistant Secretary for Administration.
If the exemption was determined by another agency, referred to in
4b.3(h), the Department will provide the individual with the name and
address of the other agency and any relief sought by the individual
shall be that provided by the regulations of the other agency. Within
the Department, no such denial is administratively final until such a
petition has been filed by the individual and disposed of on the merits
by the Assistant Secretary for Administration.
(ii) As to denial under paragraphs (g)(1)(ii), (g)(1)(iv) of this
section or (to the limited extent provided in paragraph (g)(3)(i)(A) of
this section) paragraph (g)(1)(i), the individual may file for review
with the General Counsel, as indicated in the Privacy Officer's initial
denial notification. The procedures appearing in 4b.8 shall be
followed by both the individual and the Department to the maximum extent
practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within the Department is available
because the denial is not administratively final until expiration of the
time period indicated in 4b.6(a).
(h) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.6 Special procedures: Medical records.
(a) No response to any request for access to medical records by an
individual will be issued by the Privacy Officer for a period of seven
days (excluding Saturdays, Sundays and holidays) from the date of
receipt.
(b) The Department has published as a routine use, for all systems of
records containing medical records, consultations with an individual's
physician or psychologist if, in the sole judgment of the Department,
disclosure could have an adverse effect upon the individual. The
mandatory waiting period set forth in paragraph (a) of this section will
permit exercise of this routine use in appropriate cases. The
Department will pay no cost of any such consultation.
(c) In every case of a request by an individual for access to medical
records, the Privacy Officer shall:
(1) Inform the individual of the waiting period prescribed in
paragraph (a) of this section;
(2) Obtain the name and address of the individual's physician and/or
psychologist, if the individual consents to give them;
(3) Obtain specific, written consent for the Department to consult
the individual's physician and/or psychologist in the event that the
Department believes such consultation is advisable, if the individual
consents to give such authorization;
(4) Obtain specific, written consent for the Department to provide
the medical records to the individual's physician or psychologist in the
event that the Department believes access to the record by the
individual is best effected under the guidance of the individual's
physician or psychologist, if the individual consents to give such
authorization; and,
(5) Forward the individual's medical record to the Department's
medical officer for review and a determination on whether consultation
with or transmittal of the medical records to the individual's physician
or psychologist is warranted. If the consultation with or transmittal
of such records to the individual's physician or psychologist is
determined to be warranted, the Department's medical officer shall so
consult or transmit. Whether or not such a consultation or transmittal
occurs, the Department's medical officer shall provide instruction to
the Privacy Officer regarding the conditions of access by the individual
to his or her medical records.
(d) If an individual refuses in writing to give the names and
consents set forth in paragraphs (c)(2) through (4) of this section and
the Department has determined that disclosure could have an adverse
effect upon the individual, the Department shall give the individual
access to said records by means of a copy, provided without cost to the
requester, sent registered mail return receipt requested.
15 CFR 4b.7 Request for correction or amendment to record.
(a) Any individual, regardless of age, who is a citizen of the United
States or an alien lawfully admitted for permanent residence into the
United States may submit a request for correction or amendment to the
Department. The request should be made either in person or by mail
addressed to the Privacy Officer who processed the individual's request
for access to the record, and to whom is delegated authority to make
initial determinations on requests for correction or amendment. The
offices of Privacy Officers are open to the public between the hours of
9:00 a.m. and 4:00 p.m. Monday through Friday (excluding holidays).
(b) The processing of requests submitted by mail will be facilitated
if the words ''PRIVACY ACT REQUEST'' appear in capital letters on the
face of the envelope. If, for some reason, the individual is unable to
use the Department's official form, the letter should bear the words
''PRIVACY ACT REQUEST'' in capital letters at the top.
(c) Any request which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (b) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ''received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date when the request was received at the proper address.
(d) Since the request, in all cases, will follow a request for access
under 4b.5, the individual's identity will be established by his or her
signature on the request and use of the Department control number
assigned to the request.
(e) A request for correction or amendment should include the
following:
(1) A specific identification of the record sought to be corrected or
amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which to be inserted or added; and,
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials which
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the record
is unnecessary, inaccurate, irrelevant, untimely or incomplete.
15 CFR 4b.8 Agency review of request for correction or amendment of
record.
(a)(1)(i) Not later than ten days (excluding Saturdays, Sundays and
holidays) after receipt of a request to correct or amend a record, the
Privacy Officer shall send an acknowledgment providing an estimate of
time within which action will be taken on the request and asking for
such further information as may be necessary to process the request.
The estimate of time may take into account unusual circumstances as
described in 4b.5(a). No acknowledgment will be sent if the request can
be reviewed, processed and the individual notified of the results of
review (either compliance or denial) within the ten days. Requests
filed in person will be acknowledged in writing at the time submitted.
(ii) If the Privacy Officer fails to send the acknowledgment within
the ten days, as provided above, the requester may ask the General
Counsel, to take corrective action. No failure of a Privacy Officer to
send an acknowledgment shall confer administrative finality for purposes
of judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within the ten days, the Privacy Officer
shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or a statement as to the means whereby the
correction or amendment was effected in cases where a copy cannot be
provided (for example, erasure of information from a record maintained
only in magnetically recorded computer files); or,
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Officer's name and title or position;
(B) The date of the denial;
(C) The reasons for the denial, including citation to the appropriate
sections of the Act and this part; and,
(D) The procedures for appeal of the denial as set forth in 4b.9,
including the name and address of the General Counsel.
The term promptly in this subsection means within thirty days
(excluding Saturdays, Sundays and holidays). If the Privacy Officer
cannot make the determination within thirty days, the individual will be
advised in writing of the reason therefor and of the estimated date by
which the determination will be made.
(b) Whenever an individual's record is corrected or amended pursuant
to a request by that individual, the Privacy Officer shall see to the
notification of all persons and agencies to which the corrected or
amended portion of the record had been disclosed prior to its correction
or amendment, if an accounting of such disclosure required by the Act
was made. The notification shall require a recipient agency maintaining
the record to acknowledge receipt of the notification, to correct or
amend the record and to apprise any agency or person to which it had
disclosed the record of the substance of the correction or amendment.
(c) The following criteria will be considered by the Privacy Officer
in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information;
(3) The relevance and necessity of the information in terms of
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended;
and,
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
(d) The Department will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence which the
individual submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Officer that:
(1) The individual has failed to establish, by a preponderance of the
evidence, the propriety of the correction or amendment in light of the
criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial or
quasi-legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or amended,
or the record sought to be corrected or amended, is the subject of a
pending judicial, quasi-judicial or quasi-legislative proceeding to
which the individual is a party or participant;
(4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or,
(5) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(f) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.9 Appeal of initial adverse agency determination on
correction or amendment.
(a) When a request for correction or amendment has been denied
initially under 4b.8, the individual may submit a written appeal within
thirty days after the date of the initial denial. When an appeal is
submitted by mail, the postmark is conclusive as to timeliness.
(b) An appeal shall be addressed to the General Counsel, Department
of Commerce, Room 5882, Washington, D.C. 20230. The processing of
appeals will be facilitated if the words ''PRIVACY APPEAL'' appear in
capital letters on both the envelope and the top of the appeal papers.
An appeal not addressed and marked as provided herein will be so marked
by Department personnel when it is so identified, and will be forwarded
immediately to the General Counsel. An appeal which is not properly
addressed by the individual will not be deemed to have been ''received''
for purposes of measuring the time periods in this section until actual
receipt by the General Counsel. In each instance when an appeal so
forwarded is received, the General Counsel shall notify the individual
that his or her appeal was improperly addressed and the date when the
appeal was received at the proper address.
(c) The individual's appeal papers shall include a statement of the
reasons why the initial denial is believed to be in error and the
Department's control number assigned to the request. The appeal shall
be signed by the individual. The record which the individual requests
be corrected or amended and all correspondence between the Privacy
Officer and the requester will be supplied by the Privacy Officer who
issued the initial denial. While the foregoing normally will comprise
the entire record on appeal, the General Counsel may seek additional
information necessary to assure that the final determination is fair and
equitable and, in such instances, the additional information will be
disclosed to the individual to the greatest extent possible and an
opportunity provided for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The General Counsel shall act upon the appeal and issue a final
determination in writing not later than thirty days (excluding
Saturdays, Sundays and holidays) from the date on which the appeal is
received; Provided, That the General Counsel may extend the thirty days
upon deciding that a fair and equitable review cannot be made within
that period, but only if the individual is advised in writing of the
reason for the extension and the estimated date by which a final
determination will issue. The estimated date should not be later than
the sixtieth day (excluding Saturdays, Sundays and holidays) after
receipt of the appeal unless unusual circumstances, as described in
4b.5(a), are met.
(f) If the appeal is determined in favor of the individual, the final
determination shall include the specific corrections or amendments to be
made and a copy thereof shall be transmitted promptly both to the
individual and to the Privacy Officer who issued the initial denial.
Upon receipt of such final determination, the Privacy Officer promptly
shall take the actions set forth in 4b.8(a)(2)(i) and (b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination also shall inform the
individual of the following:
(1) The right of the individual under the Act to file a concise
statement of reasons for disagreeing with the final determination. The
statement ordinarily should not exceed one page and the Department
reserves the right to reject a statement of excessive length. Such a
statement shall be filed with the General Counsel. It should provide
the Department control number assigned to the request, indicate the date
of the final determination and be signed by the individual. The General
Counsel shall acknowledge receipt of such statement and inform the
individual of the date on which it was received;
(2) The facts that any such disagreement statement filed by the
individual will be noted in the disputed record, that the purposes and
uses to which the statement will be put are those applicable to the
record in which it is noted, and that a copy of the statement will be
provided to persons and agencies to which the record is disclosed
subsequent to the date of receipt of such statement;
(3) The fact that the Department will append to any such disagreement
statement filed by the individual, a copy of the final determination or
summary thereof which also will be provided to persons and agencies to
which the disagreement statement is disclosed; and,
(4) The right of the individual to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the General Counsel shall
employ the criteria set forth in 4b.8(c) and shall deny an appeal only
on the grounds set forth in 4b.8(e).
(i) If an appeal is partially granted and partially denied, the
General Counsel shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (3) of this section
satisfy the requirements of 5 U.S.C. 552a(e)(3).
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988)
15 CFR 4b.10 Disclosure of record to person other than the individual
to whom it pertains.
(a) The Department may disclose a record pertaining to an individual
to a person other than the individual to whom it pertains only in the
following instances:
(1) Upon written request by the individual, including authorization
under 4b.5(f);
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (11), which read
as follows: 1 001
(i) To those officers and employees of the agency which maintains the
record who have a need for the record in the performance of their
duties;
(ii) Required under section 552 of this title;
(iii) For a routine use as defined in paragraph (a)(7) of this
section and described under paragraph (e)(4)(D) of this section;
(iv) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13;
(v) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(vi) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(x) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(xi) Pursuant to the order of a court of competent jurisdiction.
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by the Department
in certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the individual
to whom they pertain, upon request;
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by the Department to the court;
(4) Section 5(e)(2) of the Act author-izes release of any records or
information by the Department to the Privacy Protection Study Commission
upon request of the Chairman; and
(5) Section 6 of the Act authorizes the Office of Management and
Budget to provide the Department with continuing oversight and
assistance in implementation of the Act.
(c) The Privacy Officer shall make an accounting of each disclosure
by him of any record contained in a system of records in accordance with
5 U.S.C. 552a(c) (1) and (2). Except for a disclosure made under 5
U.S.C. 552a(b)(7), the Privacy Officer shall make such accounting
available to any individual, insofar as it pertains to that individual,
on request submitted in accordance with 4b.4. The Privacy Officer shall
make reasonable efforts to notify any individual when any record in a
system of records is disclosed to any person under compulsory legal
process, promptly upon being informed that such process has become a
matter of public record.
00115 U.S.C. 552a(b)(4) has no application within the Department.
15 CFR 4b.11 Fees.
(a) The only fees to be charged to or collected from an individual
under the provisions of this part are for copying records at the request
of the individual.
(1) No fees shall be charged or collected for the following: Search
for and retrieval of the records; review of the records; copying at
the initiative of the Department without a request from the individual;
transportation of records and personnel; and first-class postage.
(2) It is the policy of the Department to provide an individual with
one copy of each record corrected or amended pursuant to his or her
request without charge as evidence of the correction or amendment.
(3) As required by the United States Civil Service Commission in its
published regulations implementing the Act, the Department will charge
no fee for a single copy of a personnel record covered by that
Commission's Government-wide published notice of systems of records.
(b) The copying fees prescribed by paragraph (a) of this section are:
Other copying forms (e.g., typing or printing) will be charged at
direct cost, including personnel and equipment costs.
(c) All copying fees shall be paid by the individual before the
copying will be undertaken. Payments shall be made in cash or,
preferably, by check or money order payable to ''U.S. Department of
Commerce,'' and they shall be paid or sent to the office stated in the
billing notice, or if none, to the Privacy Officer processing the
request. Where appropriate, payment may be required in the form of
certified check.
(d) A copying fee totaling $1 or less shall be waived, but the
copying fees for contemporaneous requests by the same individual shall
be aggregated to determine the total fee.
A copying fee shall not be charged or collected, or alternatively, it
may be reduced, when it is determined by the Privacy Officer, based on a
petition therefor, that the petitioning individual is indigent and that
Department resources permit a waiver of all or part of the fee. An
individual is deemed to be indigent when without income or resources
sufficient to pay the fees.
(e) Special and additional services provided at the request of the
individual, such as certification or authentication, postal insurance
and special mailing arrangement costs, will be charged to the individual
in accordance with other published regulations of the Department
pursuant to statute (for example, 31 U.S.C. 483a).
(f) This section applies only to individuals making requests under
this part. To the extent an individual makes a request under the
Freedom of Information Act, as provided in 4b.1(e) (2), (3) and (5),
the fees provisions of this chapter shall apply. All other persons
shall remain subject to fees and charges prescribed by other and
appropriate authorities.
15 CFR 4b.12 Penalties.
(a) The Act provides, in pertinent part:
Any person who knowingly and willfully requests or obtains any record
concerning an individual from an agency under false pretenses shall be
guilty of a misdemeanor and fined not more than $5,000. (5 U.S.C.
552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
15 CFR 4b.13 General exemptions.
(a) Individuals may not have access to records maintained by the
Department but which were provided by another agency which has
determined by regulation that such information is subject to general
exemption under 5 U.S.C. 552a(j). If such exempt records are within a
request for access, the Department will advise the individual of their
existence and of the name and address of the source agency. For any
further information concerning the record and the exemption, the
individual must contact that source agency.
(b) The general exemptions determined to be necessary and proper with
respect to systems of records maintained by the Department, including
the parts of each system to be exempted, the provisions of the Act from
which they are exempted, and the justification for the exemption, are as
follows:
(1) Individuals identified in Export Administration compliance
proceedings or investigations -- COMMERCE/ITA-1. Pursuant to 5 U.S.C.
552a(j)(2), these records are hereby determined to be exempt from all
provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4)
(A) through (F), (e) (6), (7), (9), (10), and (11), and (i). These
exemptions are necessary to insure the proper functioning of the law
enforcement activity, to protect confidential sources of information, to
fulfill promises of confidentiality, to maintain the integrity of the
law enforcement process, to avoid premature disclosure of the knowledge
of criminal activity and the evidentiary bases of possible enforcement
actions, to prevent interference with law enforcement proceedings, to
avoid disclosure of investigative techniques, and to avoid the
endangering of law enforcement personnel. Section 7(c) of the Export
Adminstration Act of 1969, as amended, also protects this information
from disclosure.
(2) Fisheries Law Enforcement Case Files -- COMMERCE/NOAA-11.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a (b), (c)
(1) and (2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to insure the proper
functioning of the law enforcement activity, to protect confidential
sources of information, to fulfill promises of confidentiality, to
prevent interference with law enforcement proceedings, to avoid the
disclosure of investigative techniques, to avoid the endangering of law
enforcement personnel, to avoid premature disclosure of the knowledge of
criminal activity and the evidentiary bases of possible enforcement
actions, and to maintain the integrity of the law enforcement process.
(3) Investigative Records -- Contract and Grant Frauds and Employee
Criminal Misconduct -- COMMERCE/DEPT.-12. Pursuant to 5 U.S.C.
552a(j)(2), these records are hereby determined to be exempt from all
provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4)
(A) through (F), (e) (6), (7), (9), (10), and (11), and (i). These
exemptions are necessary to insure the proper functions of the law
enforcement activity, to protect confidential sources of information, to
fulfill promises of confidentiality, to prevent interference with law
enforcement proceedings, to avoid the disclosure of investigative
techniques, to avoid the endangering of law enforcement personnel, to
avoid premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, and to maintain the
integrity of the law enforcement process.
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 43 FR 43020, Sept. 22, 1978)
15 CFR 4b.14 Specific exemptions.
(a) Some systems of records under the Act which are maintained by the
Department contain, from time to time, material subject to the exemption
appearing at 5 U.S.C. 552a(k)(1), relating to national defense and
foreign policy materials. The systems of records published in the
Federal Register by the Department which are within this exemption are:
COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11,
COMMERCE/PAT-TM-4, COMMERCE/PAT-TM-6, COMMERCE/PAT-TM-7,
COMMERCE/PAT-TM-8, COMMERCE/PAT-TM-9, COMMERCE/DEPT-12,
COMMERCE/DEPT-13, and COMMERCE/DEPT-14.
The Department hereby asserts a claim to exemption of such materials
wherever they might appear in such systems of records, or any systems of
records, at present or in the future. The materials would be exempt
from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and
(f). The reason therefor is to protect the materials required by
Executive order to be kept secret in the interest of the national
defense and foreign policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt
hereunder appear in paragraph (a) of this section. The claims for
exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11
under this paragraph are subject to the condition that the general
exemption claimed in 4b.13(b)(3) is held to be invalid.
(2) Exempt under 5 U.S.C. 552a(k)(2). The systems of records exempt
(some only conditionally), the sections of the Act from which exempted,
and the reasons therefor are as follows:
(i) Individuals identified in Export Administration compliance
proceedings or investigations -- COMMERCE/ITA-1, but only on condition
that the general exemption claimed in 4b.13(b)(1) is held to be
invalid;
(ii) Individuals involved in export transactions -- COMMERCE/ITA-2;
(iii) Fisheries Law Enforcement Case Files -- COMMERCE/NOAA-11, but
only on condition that the general exemption claimed in 4b.13(b)(2) is
held to be invalid;
(iv) Investigative Records -- Contract and Grant Frauds and Employee
Criminal Misconduct -- COMMERCE/DEPT-12, but only on condition that the
general exemption claimed in 4b.13(b)(3) is held to be invalid;
(v) Investigative Records -- Persons Within the Investigative
Jurisdiction of the Department -- COMMERCE/DEPT-13;
(vi) Litigation, Claims and Administrative Proceeding Records --
COMMERCE/DEPT-14; and,
(vii) Non-Registered Persons Rendering Assistance to Patent
Applicants -- COMMERCE/PAT-TM-5.
The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
investigatory process, to insure the proper functioning and integrity of
law enforcement activities, to prevent disclosure of investigative
techniques, to maintain the ability to obtain necessary information, to
fulfill commitments made to sources to protect their identities and the
confidentiality of information and to avoid endangering these sources
and law enforcement personnel. Special note is taken of the fact that
the proviso clause in this exemption imports due process and procedural
protections for the individual. The existence and general character of
the information exempted will be made known to the individual to whom it
pertains.
(3) Exempt under 5 U.S.C. 552a(k) (4). The systems of records
exempt, the sections of the Act from which exempted, and the reasons
therefor are as follows:
(i) Agricultural Census Records for 1964 (partial), 1969, and 1974 --
COMMERCE/CENSUS-1;
(ii) Individual and Household Statistical Surveys and Special Census
Studies Records -- COMMERCE/CENSUS-3;
(iii) Minority-Owned Business Enterprises Survey Records --
COMMERCE/CENSUS-4;
(iv) Population and Housing Census Records for 1960 and 1970 --
COMMERCE/CENSUS-5;
(v) Population Census Personal Service Records for 1900 and All
Subsequent Decennial Censuses -- COMMERCE/CENSUS-6; and,
(vi) Special Censuses of Population Conducted for State and Local
Government -- COMMERCE/CENSUS-7.
The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G) (H), and (I), and (f). The reasons for asserting the
exemption are to comply with the prescription of Title 13, United States
Code, especially sections 8 and 9 relating to prohibitions against
disclosure, and to avoid needless consideration of these records whose
sole statistical use comports fully with a basic purpose of the Act,
namely, no adverse determinations may be made from these records as to
any identifiable individual.
(4) Exempt under 5 U.S.C. 552a(k)(5). The systems of records exempt
(some only conditionally), the sections of the act from which exempted,
and the reasons therefor are as follows:
(i) Applications to U.S. Merchant Marine Academy (USMMA) --
COMMERCE/MA-1;
(ii) USMMA Midshipman Medical Files -- COMMERCE/MA-17;
(iii) USMMA Midshipman Personnel Files -- COMMERCE/MA-18;
(iv) USMMA Non-Appropriated fund Employees -- COMMERCE/MA-19;
(v) Applicants for the NOAA Corps -- COMMERCE/NOAA-4;
(vi) Commissioned Officer Official Personnel Folders --
COMMERCE/NOAA-7;
(vii) Conflict of Interest Records, Appointed Officials --
COMMERCE/DEPT-3;
(viii) Investigative Records -- Contract and Grant Frauds and
Employee Criminal Misconduct -- COMMERCE/DEPT-12, but only on condition
that the general exemption claimed in 4b.13(b)(3) is held to be
invalid;
(ix) Investigative Records -- Persons Within the Investigative
Jurisdiction of the Department -- COMMERCE/DEPT-13; and,
(x) Litigation, Claims, and Administrative Proceeding Records --
COMMERCE/DEPT-14.
The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), (e)(1),
(e)(4) (G), (H), and (I), and (f). The reasons for asserting the
exemption are to maintain the ability to obtain candid and necessary
information, to fulfill commitments made to sources to protect the
confidentiality of information, to avoid endangering these sources and,
ultimately, to facilitate proper selection or continuance of the best
applicants or persons for a given position or contract. Special note is
made of the limitation on the extent to which this exemption may be
asserted. The existence and general character of the information
exempted will be made known to the individual to whom it pertains.
(c) At the present time, the Department claims no exemption under 5
U.S.C. 552a(k) (3), (6) and (7).
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, as amended at 43 FR 43021, Sept. 22, 1978)
15 CFR 4b.14 Pt. 4b, App. A
(51 FR 32207, Sept. 10, 1986, as amended at 53 FR 26236, July 12,
1988; 55 FR 38314, Sept. 18, 1990; 55 FR 38983, Sept. 24, 1990)
15 CFR 4b.14 -- Pt. 4b, App. B
(51 FR 32207, Sept. 10, 1986. Redesignated at 53 FR 26236, July 12,
1988)
15 CFR 4b.14 -- -- Pt. 4b, App. C
Insert Illus. 2A
The Privacy Act of 1974 (Pub. L. 93-579), 5 U.S.C. 552a(i)(3),
states:
''Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretences
shall be guilty of a misdemeanor and fined not more than $5,000.''
(40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975. Redesignated at 53 FR 26236, July 12, 1988)
15 CFR 4b.14 -- -- PART 5 -- OPERATION OF VENDING STANDS
Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.
Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.
Source: 28 FR 7772, July 31, 1963, unless otherwise noted.
15 CFR 5.1 Purpose.
This part prescribes regulations to assure the granting of preference
to blind persons licensed under the provisions of the Randolph-Sheppard
Vending Stand Act (49 Stat. 1559, as amended by the act of August 3,
1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of vending stands
(which term as used in this order includes vending machines).
15 CFR 5.2 Policy.
(a) The Department adopts the Federal policy announced in the
Randolph-Sheppard Vending Stand Act, as amended, to provide blind
persons with remunerative employment to enlarge the economic
opportunities of the blind and to stimulate the blind to greater efforts
in striving to make themselves self-supporting.
(b) It shall be the policy of the Department to authorize blind
persons licensed under the provisions of the Randolph-Sheppard Vending
Stand Act, as amended to operate vending stands without any charge for
space or necessary utilities on properties owned and occupied by the
Department or on which the Department controls maintenance, operation,
and protection.
(c) The Department will cooperate with the Department of Education
and State licensing agencies in making surveys to determine whether and
where vending stands may be properly and profitably operated by licensed
blind persons.
(d) The application of a State licensing agency for a permit may be
denied or revoked if it is determined that the interests of the United
States would be adversely affected or the Department would be unduly
inconvenienced by the issuance of a permit or its continuance.
(e) Disagreements concerning the denial, revocation, or modification
of a permit may be appealed by the State licensing agency as set forth
in 5.6.
(28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 5.3 Assignment of functions and authorities.
(a) The Director, Office of Administrative Services, shall carry out
the Department's responsibility to provide, in accordance with
applicable law and regulation, the maximum opportunity for qualified
blind persons to operate vending stands.
(b) Subject to instructions issued by the Director, Office of
Administrative Services, the head of each primary organization unit
shall be responsible for implementing this program within his area.
(c) The Director, Office of Administrative Services for the primary
organization units located in the main Commerce building and the head of
each other primary organization unit will make determinations with
respect to the terms of permits including the location and operation of
vending stands and machines in their respective areas.
(d) Unresolved differences and significant violations of the terms of
permits shall be reported to the State licensing agency. Where no
corrective action is forthcoming, the matter shall be referred to the
Office of Vocational Rehabilitation, Department of Education for
consideration prior to further action.
(28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 5.4 Permits.
(a) No permit, lease, or other arrangement for the operation of a
vending stand on property under control of the Department shall be
entered into or renewed without first consulting the State licensing
agency or equivalent authority.
(b) The permit shall be conditioned upon the vending stand meeting
specified standards, including standards relating to appearance, safety,
sanitation, maintenance, and efficiency of operation. Due regard shall
be given to laws and regulations for the public welfare which are
applicable, or would be applicable, if the property involved was not
owned or controlled by the Federal Government.
(c) The permit shall specify the types of articles specified in
section 2(a)(4) of the Act as amended (newspapers, periodicals,
confections, tobacco products, articles dispensed automatically or in
containers or wrappings in which they are placed before delivery to the
vending stand). Such other related articles as the State licensing
agency asks to be included shall be permitted to be sold, unless such
factors as inadequacy of available facilities, safety, health, public
welfare, or legal requirements demand otherwise.
(d) The permit shall contain a provision that alterations made by
other than the United States shall be approved by and conducted under
the supervision of an appropriate official of the Department or the
primary organization unit concerned.
(e) The permit may contain other reasonable conditions necessary for
the protection of the Government and prospective patrons of the stand.
(f) The permit shall describe the location of the stand proper and
the location of any vending machines which are operated in conjunction
with it.
15 CFR 5.5 Vending machines.
(a) The income from any vending machines which are located within
reasonable proximity to and are in direct competition with a vending
stand for which a permit has been issued under these regulations shall
be assigned to the operator of such stand.
(b) If a vending machine vends articles of a type authorized by the
permit and is so located that it attracts customers who would otherwise
patronize the vending stand, such machine shall be deemed to be in
reasonable proximity to and direct competition with the stand.
15 CFR 5.6 Appeals.
(a) In any instance where the Department of Commerce official as
provided in 5.3(c) and the State licensing agency fail to reach
agreement concerning the granting, revocation, or modification of a
permit, the location, method of operation, assignment of proceeds, or
other terms of a permit (including articles which may be sold), the
State licensing agency shall be notified in writing by the Commerce
official concerned that it has the right to appeal such disagreements,
within 30 days of the notice, to the Assistant Secretary for
Administration for investigation and final decision.
(b) Upon receipt of a timely appeal the Assistant Secretary for
Administration will cause a full investigation to be made. The State
licensing agency shall be given an opportunity to present information
pertinent to the facts and circumstances of the case. The complete
investigation report including the recommendations of the investigating
officer shall be submitted to the Assistant Secretary for Administration
within 60 days from the date of the appeal.
(c) The Assistant Secretary for Administration will render a final
decision on the appeal within 90 days of the date of appeal.
(d) The State licensing agency will be informed of the final decision
on its appeal. Copies of the decision will be forwarded to the
Department of Commerce official concerned and the Department of
Education.
(28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990)
15 CFR 5.7 Reports.
No later than fifteen days following the end of each fiscal year the
responsible officials set forth in 5.3(c) shall forward to the
Director, Office of Administrative Services a report on activities under
this order. The report shall include:
(a) The number of applications, including requests for installations
initiated by the Department, for vending stands received from State
licensing agencies;
(b) The number of such requests accepted or approved;
(c) The number denied, on which no appeal was made and the number
denied on which an appeal was made; and
(d) The number and status of any requests still pending.
15 CFR 5.8 Approval of regulations.
The provisions of this part have been approved by the Director,
Bureau of the Budget, pursuant to Executive Order 10604, of April 22,
1955.
15 CFR 5.8 PART 6 -- STANDARDIZATION OF DATA ELEMENTS AND
REPRESENTATIONS
Sec.
6.1 Purpose.
6.2 Background.
6.3 Objectives.
6.4 Glossary.
6.5 Types of standards.
6.6 Policies.
6.7 Responsibilities.
6.8 Exceptions, deferments, and revisions of Federal standards.
6.9 Effect on previously issued standards.
Appendix A -- Glossary of Terms
Authority: 79 Stat. 1127; Executive Order 11717, dated May 9, 1973
(38 FR 12315, dated May 11, 1973).
Source: 38 FR 33483, Dec. 5, 1973, unless otherwise noted.
15 CFR 6.1 Purpose.
(a) The purpose of this part is to implement the provisions of
section 111(f)(2) of the Federal Property and Administrative Services
Act of 1949, as amended (79 Stat. 1127) and Executive Order 11717 of May
9, 1973 (38 FR 12315, dated May 11, 1973). It supersedes and replaces
in its entirety Office of Management and Budget Circular A-86 entitled,
''Standardization of data elements and codes in data systems'', dated
September 30, 1967. Office of Management and Budget Circular No. A-86
was rescinded by the Director of Office of Management and Budget on
August 29, 1973.
(b) This part identifies responsibilities and provides policies and
guidelines for the management of activities in the Executive Branch
relating to the development, implementation and maintenance of standards
for data elements and representations used in automated Federal data
systems. Its provisions complement the standards and recommendations
that have been or may be issued under the statistical procedures
prescribed by Office of Management and Budget Circular A-46.
15 CFR 6.2 Background.
(a) Recent advances in computer and communications technologies have
made possible the wider use of data and programs that are developed or
generated to meet mission requirements of Federal departments, agencies,
and activities. While the extended use of these data and programs can
contribute to reduced costs in government operations and improved
serv-ices, the full advantages of these new technical capabilities
cannot be realized until standards are developed and implemented which
will provide for the uniform identification, definition and
representation of data. These standards for data must also be
accompanied by supporting standards for representing graphic characters
(alphabets, numbers, and other symbols), communications and device
controls. In addition, it is essential to have standards that provide
for interchangeable media (e.g., tapes, cassettes and disks) covering
both physical and logical specifications.
(b) There is an ever increasing need to interchange data and programs
with state, local and other governments, and with industry and the
public. This adds further emphasis and dimension to the need for
responsive standards that will facilitate interchange.
(c) This part defines a Federal-wide program for standardizing data
elements and representations which are used and interchanged in
government data systems. Other approved standards and guidelines issued
by the National Institute of Standards & Technology in the Federal
Information Processing Standards series of publications address related
ADP subjects and areas.
(38 FR 33483, Dec. 5, 1973, as amended at 55 FR 38314, Sept 18, 1990)
15 CFR 6.3 Objectives.
The principal goal in standardizing data elements and representations
is to make maximum utilization of the data resources of the Federal
Government and to avoid unnecessary duplications and incompatibilities
in the collection, processing, and dissemination of data.
15 CFR 6.4 Glossary.
Appendix A of this part provides a glossary of terms as used in this
part and in descriptions of data.
15 CFR 6.5 Types of standards.
For the purposes of this part, the following types of practices and
standard are identified for data elements and representations:
(a) De facto practices. Those data elements and representations in
current use that have not been subjected to official or formal
standardization.
(b) Unit standards. Those data elements and representations that
have been approved by an authorized official for use within that unit.
(A unit for purposes of this part is any Federal organization within the
executive branch of the government, which is at a lower organizational
level than an executive department or independent agency).
(c) Agency standards. Those data elements and representations that
have been approved by an authorized official for use within an executive
department or independent agency.
(d) Federal program standards. Those data elements and
representations that have been approved by the Secretary of Commerce for
use in a particular program or mission where more than one executive
branch department or independent agency is involved with their use. For
example, those standards that could be approved and prescribed for use
are those which include, but are not limited to, Federal-wide personnel,
communications and transportation data systems.
(e) Federal general standards. Those representations that have been
approved by the Secretary of Commerce for Federal-wide use by executive
departments and independent agencies in all Federal-wide programs and
for use in all Federal data systems. For example, this includes such
representations as calendar dates, state abbreviations and codes, and
codes for standard metropolitan statistical areas.
(f) American national standards. Those data elements and
representations that have been approved for voluntary national use by
the American National Standards Institute.
(g) International standards. Those data elements and representations
that have been approved by the International Organization for
Standardization (ISO), for voluntary use by member nations and
international organizations.
15 CFR 6.6 Policies.
The following policies apply to the development, implementation, and
maintenance of data element and representation standards:
(a) Data elements and representations that are prescribed for
interchange among more than one executive department or agency or with
the private sector including industry, state, local, or other
governments, or with the public at large will be considered for
standardization as either Federal general or Federal program standards.
(b) Federal general standards are the highest level standards
followed by Federal program standards, agency standards and unit
standards in that order. This order establishes a precedence for
standards use. For example, a Federal general standard will be used and
will supplant a Federal program, agency or unit standard. Likewise a
Federal program standard takes precedence over an agency or unit
standard.
(c) Approved standards will be implemented by all Federal agencies in
all circumstances where technical, operating and economic benefits can
be expected to result. These standards will be considered on the basis
of their long term benefits and advantages to the government at large.
Local inconveniences or short-term conversion costs need to be
recognized, but such factors will not be considered overriding
deterrents to the development, implementation, and maintenance of
standards that are capable of reducing overall government operating
costs or providing improved government serv-ices.
(d) Existing standards will be considered for adoption as Federal
general or program standards when these are determined to meet Federal
requirements or can readily be adapted to do so.
(e) Approved standards and revisions thereto will be implemented on a
time phased basis in order to minimize disruption and conversion costs.
Conversion costs will be identified and considered in the submissions of
annual budget estimates.
(f) Although data element and representation standards are developed
and implemented to provide for the effective interchange and processing
of data, Federal departments and agencies must comply with applicable
statutes, regulations and executive orders to assure that sensitive or
classified data are adequately protected and that only authorized
disclosure or release of such data is allowed.
(g) In the formulation of standards for data elements and
representations which will have implementation impact on state and local
governments, industry or other segments of the private sector,
arrangements will be made to establish necessary liaisons and
coordinations with these interests to consider their needs and potential
problems in responding to federally imposed reporting requirements.
15 CFR 6.7 Responsibilities.
Responsibilities for the standardization of data elements and
representations are outlined below:
(a) Department of Commerce. The Department of Commerce will provide
leadership of an executive branch program for standardizing data
elements and representations. Within the Department the following
specific responsibilities are assigned:
(1) Secretary of Commerce. The Secretary of Commerce, on behalf of
the President, approves all Federal Information Processing Standards.
For data elements and representations, this approval will include both
Federal general and Federal program standards.
(2) National Institute of Standards & Technology. The National
Institute of Standards & Technology will:
(i) Arrange with appropriate executive branch departments and
independent agencies to assume leadership and undertake responsibilities
for the development and maintenance of specific Federal program and
Federal general standards.
(ii) Arrange for the publication and promulgation of approved Federal
general and Federal program standards. These will be promulgated by the
National Institute of Standards & Technology as Federal Information
Processing Standards. The responsibility under this subparagraph
includes the authority to modify or supersede these standards whether
issued under this regulation or prior to the effective date of this
regulation.
(iii) Maintain and promulgate selected registers of data element and
representation standards and practices that are under development or are
in current use.
(iv) Provide procedures, guidelines and criteria to assist Federal
departments and agencies in the development, implementation, and
maintenance of standards.
(v) Provide technical assistance, as requested and within the limits
of available resources to Federal departments and agencies on matters
concerning the utilization of automatic data processing and
standardization.
(vi) Arrange for the assessment of the need, impact, benefits and
problems related to the implementation of proposed and approved
standards.
(vii) Coordinate requests for exceptions to and deferments on the
implementation of approved Federal standards.
(viii) Arrange for and coordinate appropriate Federal representation
and participation on voluntary industry committees.
(ix) Arrange for appropriate liaison with state, local and other
governments on matters of mutual interest or concern relating to Federal
development, implementation, and maintenance of standards.
(b) Departments and independent agencies. Each of these
organizations will:
(1) Implement approved Federal standards that are announced under the
provisions of this part and assist the National Institute of Standards &
Technology in the assessment of the need, impact, benefits and problems
related to the implementation of approved standards.
(2) Assume leadership and support of responsibilities for the
development of Federal general and Federal program standards as may be
mutually arranged by the National Institute of Standards & Technology.
(3) Establish within their organizations, mechanisms for the
development, implementation and maintenance of agency and unit standards
where such efforts will contribute to reduced costs or improved
services.
(4) Establish appropriate procedures and mechanisms within their
organizations for the dissemination and implementation of approved
Federal standards.
(5) Review and provide information and comments on proposed standards
that are being considered for Federal adoption. This includes the
analyses necessary to assess implementation impact and potential savings
or improved services.
(6) Prepare and submit selected registers of data elements and
representations within the data systems of the department or agency as
may be arranged by the National Institute of Standards & Technology.
These registers will be used as a source reference to avoid duplication
in the design of new data elements and representations and to assist in
determining possible subjects for future standardization.
(7) Provide participation on committees and task groups that may be
formed to develop and maintain Federal general or Federal program
standards.
(8) Provide participation, as requested by the National Institute of
Standards & Technology, on committees and task groups that may be formed
to develop and maintain voluntary industry standards for use nationally
and internationally.
(9) Designate an office or official to act as a single point of
contact on matters related to this part.
(38 FR 33483, Dec. 5, 1973, as amended at 55 FR 38314, Sept 18, 1990)
15 CFR 6.8 Exceptions, deferments, and revisions of Federal standards.
Requests for exceptions, deferments and revisions of standards will
be forwarded to the National Institute of Standards & Technology for
consideration and/coordination. These requests will provide detailed
justification for the exception, deferment or revision deemed necessary.
These should be submitted at least forty-five days in advance of any
exception or deferral action.
(38 FR 33483, Dec. 5, 1973, as amended at 55 FR 38314, Sept 18, 1990)
15 CFR 6.9 Effect on previously issued standards.
All standards that were issued under the provisions of Office of
Management and Budget Circular No. A-86 prior to the effective date of
this regulation remain in effect unless modified or superseded pursuant
to the provisions of the regulations in this part.
15 CFR 6.9 Pt. 6, App. A
15 CFR 6.9 Appendix A -- Glossary of Terms
This Glossary includes definitions of terms used in this part.
Additional terms applicable to data standardization are provided for
purposes of clarification. The terms and definitions are either from
established vocabularies or have been defined for purposes of this part.
Attribute Data Element -- A data element that is used to qualify or
quantify another data element (e.g., ''Date of Birth'' and ''Mailing
Address'' would be attribute data elements in a personnel file where the
primary element(s) is/are used to identify the person).
Character Type -- An indication of the type of characters or bytes to
represent a value (i.e., alphabetic, numeric, pure alphabetic, pure
numeric, binary, packed numeric, etc.).
Alphabetic -- A representation which is expressed using only letters
and punctuation symbols.
Alphanumeric -- A representation which is expressed using letters,
numbers, and punctuation symbols.
Binary -- A representation of numbers which is expressed using only
the numbers 0 and 1, e.g., 5 is expressed as 101.
Numeric -- A representation which is expressed using only numbers and
selected mathematical punctuation symbols.
Packed Numeric -- A representation of numeric values that compresses
each character representation in such a way that the original value can
be recovered, e.g., in an eight bit byte, two numeric characters can be
represented by two four bit units.
Pure Alphabetic -- A representation which is expressed using only
letters.
Pure Alphanumeric -- A representation which is expressed using only
letters and numbers.
Pure Numeric -- A representation which is expressed using only
numbers.
Composite Data Element (Data Chain) -- A data element that has an
ordered string of related data items that can be treated as a group or
singly, e.g., a data element named ''Date of Birth'' could have the data
items, ''Year'', ''Month'', and ''Day of Month''.
Context Dependent Definition -- A statement of meaning that relies
upon a situation, background, or environment for proper interpretation.
Date Code -- A coded representation used to identify a data item.
Usually codes are designed according to established rules and criteria,
and only by chance form a phonetic word or phrase.
Data Element -- A basic unit of identifiable and definable
information. A data element occupies the space provided by fields in a
record or blocks on a form. It has an identifying name and value or
values for expressing a specific fact. For example, a data element
named ''Color of Eyes'' could have recorded values of ''Blue (a name)'',
''BL (an abbreviation)'' or ''06 (a code).'' Similarly, a data element
named ''Age of Employee'' could have a recorded value of ''28 (a numeric
value).''
Data Element Abbreviation -- An abbreviated form of the data element
name.
Data Element Definition -- A statement of the meaning of a data
element.
Data Element Name -- A name used to identify a data element.
Data Element Source -- An identification of the source or provider of
the particular data element, i.e., individual, organization, sensor,
computation, etc.
Data Element Tag (Data Element Code) -- A symbolic tag used to
identify a data element.
Data Item -- The expression of a particular fact of a data element
e.g., ''Blue'' may be a data item of the data element named ''Color of
eyes''.
Data Item Abbreviation -- An abbreviated form of the data item name.
Data Item Definition -- A statement of the meaning of a data item.
Data Item Name -- A name used to identify a data item.
Dependent Code -- A code that has segments which are dependent upon
other segments in order to provide unique identification of the coded
item. Usually, codes having classification significance are dependent
codes.
Field -- In a record, a specific area used for representing a
particular category of data, e.g., a group of card columns used to
express a wage rate.
Field Length -- A measure of the length (size) of a field, usually
expressed in units of characters, words, or bytes.
Field Length Type -- An indication of whether the field of a record
is fixed or variable in length.
Fixed Length Field -- A field whose length does not vary.
Variable Length Field -- A field whose length varies. Usually, the
boundaries of this type of field are identified by filed separators.
Field Separator -- A character or byte used to identify the boundary
between fields.
Filler Character -- A specific character or bit combination used to
fill the remainder of a field after justification.
Formatted Information -- An arrangement of information into discrete
units and structures in a manner to facilitate its access and
processing. Contrasted with narrative information that is arranged
according to rules of grammar.
General Definition -- A statement of meaning that can be interpreted
without regard to a specific situation, background, or environment.
Information Interchange -- The transfer of data representing
information between or among two or more points (devices, locations,
organizations, or persons) of the same or different (dissimilar)
information system or systems.
Justification -- To adjust the value representation in a field to
either the right or left boundary (margin).
Left Justify -- Adjustment of a value representation to the left
boundary (high order) of a field.
Right Justify -- Adjustment of a value representation to the right
boundary (low order) of a field.
Non-significant Code -- A code that provides for the identification
of a particular fact but does not yield any further information, e.g.
random numbers used as codes. Contrasted with significant code.
Numeric Value -- The expression of a data item which denotes a
measurement, count, or mathematical concept, usually represented by
numerals and a limited number of special characters (i.e., plus (+),
minus('), decimal point (.), comma (,), asterisk (*), and slant(/)).
Padding -- A technique used to fill a field, record, or block with
dummy data (usually zeros or spaces).
Primary Data Element -- A data element or elements that is/are the
subject of a record. Usually the other elements, called attribute data
elements, qualify or quantify the primary data element (e.g., in a
personnel field, the element(s) that is/are used to identify the
individual are primary; other elements such as ''Date of Birth'' and
''Mailing Address'' are attributable data elements).
Radix Point -- A character, usually a period, that separates the
integer part of a number from the fractional part. In decimal (base 10)
notation the radix point is called the decimal point.
Record -- A collection of related elements of data treated as a unit.
Record Index -- An ordered reference list of the contents of a record
together with keys or reference notations for identifying and locating
the contents.
Record Layout -- A description of the arrangement and structure of
information in a record, including the sequence and size of each
identified component.
Record Length -- A measure of the length (size) of a record, usually
expressed in units of characters, words, or bytes.
Record Length Type -- An indication of whether the records of a file
are fixed or variable in length.
Fixed Length Record -- Pertaining to a file in which the records are
uniform in length.
Variable Length Record -- Pertaining to a file in which the records
are not uniform in length.
Representation -- A number, letter or symbol used to express a
particular concept or meaning. It may be in the form of a name,
abbreviation, code, or numeric value.
Rounding (Roundoff) -- To delete the least significant digit or
digits of a numeral, and to adjust the part retained in accordance with
some rule.
Self-Checking Code -- A code that is appended to another code to
provide for validity checking. A self-checking code is derived
mathematically from the characteristics of the base code.
Significant Code -- A code which in addition to identifying a
particular fact also yields further information, e.g., catalog numbers
in addition to identifying a particular item also often indicate the
classification of the item. Contrasted with non-significant code.
Truncate -- To delete characters from a character string, usually
from either end of the string.
Type of Code Significance -- An indication of the type of
significance that a particular code yields.
Collating Significance -- A code designed in such a way that it
facilitates ordering of the coded item.
Mnemonic Significance -- A code designed in such a way as to
facilitate the human recall of the name of the coded items.
Classification Significance -- A code designed in such a way as to
facilitate the classifying of the coded items into classes and
sub-classes.
Variable Name Data Element -- A data element that identifies a set
(array) of similar values (data items). By varying certain identifiers
in the name the entire set (array) of values can be identified. For
example, a set of values that give population by State and Year could be
identified by the data element ''Population of (State) in (Year)'' where
State and Year are variable names. The variable names are used to
identify particular values in an array (e.g., ''Population of (New
Jersey) in 1970'' was 7,168,164.) In this example ''New Jersey'' and
''1970'' are variable names used to identify a specific value
''7,168,164'' in an array.
15 CFR 6.9 PART 7 -- NATIONAL VOLUNTARY LABORATORY ACCREDITATION PROGRAM PROCEDURES
15 CFR 6.9 Subpart A -- General Information
Sec.
7.1 Purpose.
7.2 Description and goal of NVLAP.
7.3 Layout of procedures.
7.4 Definitions.
7.5 Establishment and functions of a National Laboratory
Accreditation Advisory Committee.
7.6 User information.
7.7 Information collection requirements.
15 CFR 6.9 Subpart B -- Establishing a LAP
7.11 Requesting a LAP.
7.12 LAP development decision.
7.13 Request from a government agency.
7.14 Request from a private sector organization.
7.15 Development of technical requirements.
7.16 Coordination with Federal agencies.
7.17 Announcing the establishment of a LAP.
7.18 Adding to an established LAP.
7.19 Termination of a LAP.
15 CFR 6.9 Subpart C -- Accrediting a Laboratory
7.21 Applying for accreditation.
7.22 Assessing and evaluating a laboratory.
7.23 Granting and renewing accreditation.
7.24 Denying, suspending, and revoking accreditation.
7.25 Voluntary termination of accreditation.
15 CFR 6.9 Subpart D -- Conditions and Criteria for Accreditation
7.31 Application of accreditation conditions and criteria.
7.32 Conditions for accreditation.
7.33 Criteria for accreditation.
Authority: Sec. 2, 31 Stat 1449 as amended (15 U.S.C. 272); Reorg.
Plan No. 3 of 1946, Part VI.
Source: 49 FR 44623, Nov. 8, 1984, unless otherwise noted.
15 CFR 6.9 Subpart A -- General Information
15 CFR 7.1 Purpose.
The purpose of Part 7 is to set out procedures under which the
National Voluntary Laboratory Accreditation Program (NVLAP) will
function.
15 CFR 7.2 Description and goal of NVLAP.
(a) NVLAP is a system for accrediting testing laboratories found
competent to perform specific tests or types of tests. Competence is
defined as the ability of a laboratory to meet the NVLAP conditions (
7.32) and to conform to the criteria ( 7.33) as tailored and interpreted
for the test methods, types of test methods, products, services, or
standards for which the laboratory seeks accreditation.
(b) NVLAP is a voluntary system which:
(1) Provides national recognition for competent laboratories;
(2) Provides laboratory management with a quality assurance check of
the performance of their laboratories;
(3) Identifies competent laboratories for use by regulatory agencies,
purchasing authorities, and product certification systems; and
(4) Provides laboratories with guidance from technical experts to aid
them in reaching a higher level of performance resulting in the
generation of improved engineering and product information.
(c) NVLAP is comprised of a series of laboratory accreditation
programs (LAPs) which are established on the basis of requests and
demonstrated need. The specific test methods, types of test methods,
products, services, or standards to be included in a LAP must be
requested. The Director of the National Institute of Standards &
Technology (NIST) does not unilaterally propose or decide the scope of a
LAP. Communication with other laboratory accreditation systems is
fostered to encourage development of common criteria and approaches to
accreditation and to promote the domestic, foreign, and international
acceptance of test data produced by the accredited laboratories.
(d) NVLAP is carried out to be compatible with and recognized by
domestic, foreign, and international systems for laboratory
accreditation so as to enhance the universal acceptance of test data
produced by NVLAP-accredited laboratories.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.3 Layout of procedures.
Subpart A describes considerations which relate in general to all
aspects of NVLAP. Subpart B describes how new LAPs are requested,
developed and announced, and how LAPs are terminated. Subpart C
describes procedures for accrediting laboratories. Subpart D sets out
the conditions and criteria for NVLAP accreditation.
15 CFR 7.4 Definitions.
Accreditation criteria means a set of requirements used by an
accrediting body which a laboratory must meet to be accredited.
Advisory Committee means the National Laboratory Accreditation
Advisory Committee.
Director of NIST means the Director of the National Institute of
Standards & Technology or designee.
Laboratory accreditation is a formal recognition that a testing
laboratory is competent to carry out specific tests or types of tests.
Laboratory assessment means the on-site examination of a testing
laboratory to evaluate its compliance with specified criteria.
LAP means a laboratory accreditation program established and
administered under NVLAP.
NIST means the National Institute of Standards & Technology
NVLAP means the National Voluntary Laboratory Accreditation Program.
Person means associations, companies, corporations, educational
institutions, firms, government agencies at the federal, state and local
level, partnerships, and societies -- as well as divisions thereof --
and individuals.
Product means a type or a category of manufactured goods,
constructions, installations, and natural and processed materials, or
those associated services whose characterization, classification, or
functional performance is specified by standards or test methods.
Proficiency testing means methods of checking laboratory testing
performance by means of interlaboratory tests.
Testing laboratory is a laboratory which measures, examines, tests,
calibrates or otherwise determiens the characteristic or performance of
products.
Traceability of the accuracy of measuring instruments is a documented
chain of comparison connecting the accuracy of a measuring instrument to
other measuring instruments of higher accuracy and ultimately to a
primary standard.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.5 Establishment and functions of a National Laboratory
Accreditation Advisory Committee.
(a) The Director of NIST shall establish a National Laboratory
Accreditation Advisory Committee (Advisory Committee) and appoint its
chairperson and members following the filing of a charter setting forth
the purpose and nature of the committee.
(b) The composition of the Advisory Committee will be approximately
as follows:
(1) One-third from federal, state and local governments;
(2) One-third from testing laboratories (independent, corporate, and
academic); and
(3) One-third from users of testing laboratories, academia,
consultants, and consumers.
(c) The Advisory Committee will be governed by the Federal Advisory
Committee Act (5 U.S.C. App. 2). Persons selected to serve on the
Advisory Committee may be paid travel expenses and per diem.
(d) The Advisory Committee shall function solely in an advisory
capacity with functions to include the following:
(1) Assessing the future and continuing role of NVLAP and laboratory
accreditation in terms of the changing requirements of industry and
commerce;
(2) Advising on the technical requirements of testing laboratories
and those served by the laboratories;
(3) Advising on the necessity and implementation of proposed
amendments to the criteria referenced in 7.33;
(4) Evaluating the interaction of other laboratory accreditation
systems with NVLAP: and
(5) Reviewing and giving recommendations on the development of
international accreditation activities and assessing the impact of such
activities on NVLAP.
(e) The Advisory Committee shall meet periodically as called upon or
may be consulted through periodic mailings.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.6 User information.
(a) NVLAP shall prepare and publish at least once each year a
directory of accredited laboratories.
(b) NVLAP shall periodically prepare supplements to the directory of
accredited laboratories covering new accreditation actions taken,
including initial accreditations, renewals, suspensions, terminations,
and revocations.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.7 Information collection requirements.
The information collection requirements contained in these NVLAP
procedures have been approved by the Office of Management and Budget
under the Paperwork Reduction Act and have been assigned OMB control
number 0693-0003.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.7 Subpart B -- Establishing a LAP
15 CFR 7.11 Requesting a LAP.
(a) Any person may request the Director of NIST to establish a LAP.
(b) Each request must be in writing and must include:
(1) The scope of the LAP in terms of products or testing services
proposed for inclusion;
(2) Specific identification of the applicable standards and test
methods including appropriate designations, and the organizations or
standards writing bodies having responsibility for them;
(3) A statement of need for the LAP including:
(i) Technical and economic reasons why the LAP would benefit the
public interest;
(ii) Evidence of a national need to accredit testing laboratories for
the specific scope beyond that served by an existing laboratory
accreditation program in the public or private sector;
(iii) An estimate of the number of laboratories that may seek
accreditation; and
(iv) An estimate of the number and nature of the users of such
laboratories; and
(4) A statement of the extent to which the requestor is willing to
support necessary developmental aspects of the LAP with funding and
personnel.
(c) NVLAP may request clarification of the information required by
paragraph (b) of this section.
(d) Before determining the need for a LAP, the Director of NIST shall
publish a Federal Register notice of the receipt of a LAP request if the
request complies with 7.11(b). The notice will:
(1) Describe the scope of the requested LAP;
(2) Indicate how to obtain a copy of the request; and
(3) State that anyone may submit comments on the need for a LAP to
NVLAP within 60 days of the date of the notice.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.12 LAP development decision.
(a) The Director of NIST shall establish all LAPs on the basis of
need. Government agencies and private sector organizations may
establish the need by using 7.13 and 7.14.
(b) After receipt of the request, the Director of NIST shall analyze
it to determine if a need exists for the requested LAP. In making this
determination, the Director of NIST shall consider the following:
(1) The needs and scope of the LAP initially requested;
(2) The needs and scope of the user population;
(3) The nature and content of other relevant public and private
sector laboratory accreditation programs;
(4) Compatibility with the criteria referenced in 7.33;
(5) The importance of the requested LAP to commerce, consumer
well-being, or the public health and safety;
(6) The economic and technical feasibility of accrediting testing
laboratories for the test methods, types of test methods, products,
services, or standards requested; and
(7) Recommendations from written comments for altering the scope of
the requested LAP by adding or deleting test methods, types of test
methods, products, services, or standards.
(c) If the Director of NIST decides that a need has been
demonstrated, and if resources are available to develop a LAP, NVLAP
shall notify interested persons of the decision to proceed with
development of a LAP.
(d) If the Director of NIST concludes that there is a need for a LAP
but there are no resources for development, NVLAP shall notify the
requestor and other interested persons of the decision not to proceed
until resources become available.
(e) If the Director of NIST decides that a need for a LAP has not
been demonstrated, NVLAP shall notify the requestor and other interested
persons of the decision and the reasons not to proceed with development
of a LAP.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.13 Request from a government agency.
(a) Any Federal, state or local agency responsible for regulatory or
public service programs established under statute or code, which has
determined a need to accredit testing laboratories within the context of
its programs, may request the Director of NIST to establish a LAP.
(b) Each request must be in writing and must include the information
required in 7.11(b) and:
(1) A description of the procedures followed or a citation of the
specific authority used to determine the need for a LAP; and
(2) For state and local government agencies, a statement of why the
LAP should be of national scope.
(c) NVLAP may request clarification of the information required by
paragraph (b) of this section.
(d) Before deciding to proceed with the development of a LAP, the
Director of NIST shall publish a Federal Register notice of the receipt
of a LAP request. The notice will indicate how to obtain a copy of the
request and will state that anyone may submit comments on the need for a
LAP to the requesting government agency within 60 days of the date of
the notice.
(e) NVLAP shall notify interested persons of the decision to proceed
or not to proceed with development of a LAP.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.14 Request from a private sector organization.
(a) Any private sector organization which has determined a need to
accredit testing laboratories for specific products or testing services,
may request the Director of NIST to establish a LAP if it uses
procedures meeting the following conditions:
(1) Public notice of meetings and other activities including requests
for LAPs is provided in a timely fashion and is distributed to reach the
attention of interested persons;
(2) Meetings are open and participation in activities is available to
interested persons;
(3) Decisions reached by the private sector organization in the
development of a request for a LAP represent substantial agreement of
the interested persons;
(4) Prompt consideration is given to the expressed views and concerns
of interested persons;
(5) Adequate and impartial mechanisms for handling substantive and
procedural complaints and appeals are in place; and
(6) Appropriate records of all meetings are maintained and the
official procedures used by the private sector organization to make a
formal request for a LAP are made available upon request to any
interested person.
(b) Each request must be in writing and must include the information
required in 7.11(b) and a description of the way in which the
organization has met the conditions specified in paragraph (a) of this
section.
(c) NVLAP may request clarification of the information required by
paragraph (b) of this section.
(d) Before deciding to proceed with development of a LAP, the
Director of NIST shall publish a Federal Register notice of the receipt
of a LAP request. The notice will indicate how to obtain a copy of the
request and will state that anyone may submit comments on the need for a
LAP to the requesting private sector organization within 60 days of the
date of the notice.
(e) NVLAP shall notify interested persons of the decision to proceed
or not to proceed with development of a LAP.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38314, Sept. 18,
1990)
15 CFR 7.15 Development of technical requirements.
(a) Technical requirements for accreditation are specific for each
LAP. The requirements tailor the criteria referenced in 7.33 to the
test methods, types of test methods, products, services, or standards
covered by the LAP.
(b) NVLAP shall develop the technical requirements based on expert
advice. This advice may be obtained through one or more informal public
workshops or other suitable means.
(c) NVLAP shall make every reasonable effort to ensure that the
affected testing community within the scope of the LAP is informed of
any planned workshop. Summary minutes of each workshop will be
prepared. A copy of the mintues will be made available for inspection
and copying at the NIST Records Inspection Facility.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.16 Coordination with Federal agencies.
As a means of assuring effective and meaningful cooperation, input,
and participation by those federal agencies that may have an interest in
and may be affected by established LAPs, NVLAP shall communicate and
consult with appropriate officials within those agencies.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.17 Announcing the establishment of a LAP.
(a) When NVLAP has completed the development of the technical
requirements of the LAP and established a schedule of fees for
accreditation, NVLAP shall publish a notice in the Federal Register
announcing the establishment of the LAP.
(b) The notice will:
(1) Identify the scope of the LAP; and
(2) Advise how to apply for accreditation.
(c) NVLAP shall establish fees in amounts that will enable the LAP to
be self-sufficient. NVLAP shall revise the fees when necessary to
maintain self-sufficiency.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.18 Adding to an established LAP.
Written requests will be considered from any person wishing to add
specific standards, test methods, or types of test methods to an
established or developing LAP. NVLAP may choose to make them available
for accreditation under a LAP when:
(a) The additional standards, test methods, or types of test methods
requested are directly relevant to the LAP;
(b) It is feasible and practical to accredit testing laboratories for
the additional standards, test methods, or types of test methods; and
(c) It is likely that laboratories will seek accreditation for the
additional standards, test methods, or types of test methods.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.19 Termination of a LAP.
(a) The Director of NIST may terminate a LAP when the Director of
NIST determines that a need no longer exists to accredit testing
laboratories for the products or testing services covered under the
scope of the LAP. In the event that the Director of NIST proposes to
terminate a LAP, a notice will be published in the Federal Register
setting forth the basis for that determination.
(b) The notice published under paragraph (a) of this section will
provide a 60-day period for submitting written comments on the proposal
to terminate the LAP. All written comments will be made available for
public inspection and copying at the NIST Records Inspection Facility.
(c) After the comment period, the Director of NIST shall determine if
public support exists for the continuation of the LAP. If public
comments support the continuation of the LAP, the Director of NIST shall
publish a Federal Register notice announcing the continuation of the
LAP. If public support does not exist for continuation, the LAP will be
terminated effective 90 days after the date of the published notice of
intent to terminate the LAP.
(d) If the LAP is terminated, NVLAP shall no longer grant or renew
accreditations following the effective date of termination.
Accreditations previously granted will remain effective until their
expiration date unless terminated voluntarily by the laboratory or
revoked by NVLAP.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.19 Subpart C -- Accrediting a Laboratory
15 CFR 7.21 Applying for accreditation.
(a) Any laboratory may request an application for accreditation in
any established LAPs in accordance with instructions provided in notices
announcing the formal establishment of LAPs.
(b) Upon receipt of a laboratory's application, NVLAP shall:
(1) Acknowledge receipt of the application;
(2) Request further information, if necessary;
(3) Confirm payment of fees before proceeding with the accreditation
process; and
(4) Specify the next step(s) in the accreditation process.
(c) In accepting an application from a foreign-based laboratory,
NVLAP shall take into consideration the policy of the host government
regarding the acceptance of test data from laboratories accredited by
NVLAP or other foreign accreditation systems.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.22 Assessing and evaluating a laboratory.
(a) Information used to evaluate a laboratory's compliance with the
conditions for accreditation set out in 7.32, the criteria for
accreditation set out in 7.33, and the technical requirements
established for each LAP will include:
(1) On-site assessment reports;
(2) Laboratory responses to identified deficiencies; and
(3) Laboratory performance on proficiency tests.
(b) NVLAP shall arrange the assessment and evaluation of applicant
laboratories by contract or other means in such a way as to minimize
potential conflicts of interest.
(c) NVLAP shall inform each applicant laboratory of any action(s)
that the laboratory must take to complete the requirements for
assessment and evaluation.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.23 Granting and renewing accreditation.
(a) NVLAP, after reviewing an evaluation report, shall grant or
renew, suspend, or propose to deny or revoke accreditation of an
applicant laboratory, no later than 30 days following the date of
submittal of the report. If accreditation action is not taken within
this time limit, NVLAP shall notify the laboratory stating the reasons
for the delay.
(b) If accreditation is granted or renewed, NVLAP shall:
(1) Provide a certificate of accreditation to the laboratory;
(2) Identify the scope and terms of the laboratory's accreditation;
(3) Provide guidance on referencing the laboratory's accredited
status, and the use of the NVLAP logo by the laboratory and its clients,
as needed; and
(4) Remind the laboratory that accreditation does not relieve it from
complying with applicable federal, state, and local laws and
regulations.
(c) NVLAP shall notify an accredited laboratory at least 30 days
before its accreditation expires advising of the action(s) the
laboratory must take to renew its accreditation.
(d) If an accredited laboratory fails to complete the assessment and
evaluation process for renewal before its accreditation expires, NVLAP
shall notify the laboratory stating that its accreditation has expired
and reiterating the action(s) the laboratory must take to renew its
accreditation.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.24 Denying, suspending, and revoking accreditation.
(a) If NVLAP proposes to deny or revoke accreditation of a
laboratory, NVLAP shall inform the laboratory of the reasons for the
proposed denial or revocation and the procedure for appealing such a
decision.
(b) The laboratory will have 30 days from the date of receipt of the
proposed denial or revocation letter to request a hearing under the
provisions of 5 U.S.C. 556. If the laboratory requests a hearing, the
proposed denial or revocation will be stayed pending the outcome of the
hearing held under provisions of 5 U.S.C. 556. The proposed denial or
revocation will become final through the issuance of a written decision
to the laboratory in the event that the laboratory does not appeal the
proposed denial or revocation within that 30-day period.
(c) If NVLAP finds that an accredited laboratory has violated the
terms of its accreditation or the provisions of these procedures, NVLAP
may, after consultation with the laboratory, suspend the laboratory's
accreditation, or advise of his/her intent to revoke its accreditation.
If accreditation is suspended, NVLAP shall notify the laboratory of that
action stating the reasons for and conditions of the suspension and
specifying the action(s) the laboratory must take to have its
accreditation reinstated. Conditions of suspension will include
prohibiting the laboratory from using the NVLAP logo on its test reports
during the suspension period. The determination of NVLAP whether to
suspend or to propose revocation of a laboratory's accreditation will
depend on the nature of the violation(s) of the terms of its
accreditation.
(d) A laboratory whose accreditation has been denied, revoked,
terminated, or expired, or which has withdrawn its application before
being accredited, may reapply and be accredited if the laboratory:
(1) Completes the assessment and evaluation process; and
(2) Meets the conditions and criteria for accreditation that are set
out in Subpart D;
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.25 Voluntary termination of accreditation.
A laboratory may at any time terminate its participation and
responsibilities as an accredited laboratory by advising NVLAP in
writing of its desire to do so. NVLAP shall terminate the laboratory's
accreditation and shall notify the laboratory stating that its
accreditation has been terminated in response to its request.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.25 Subpart D -- Conditions and Criteria for Accreditation
15 CFR 7.31 Application of accreditation conditions and criteria.
(a) To become accredited and maintain accreditation, a laboratory
must meet the conditions for accreditation set out in 7.32 and the
criteria set out in 7.33 as tailored for specific LAPs.
(b) The conditions leading to accreditation include acceptance of the
responsibilities of an accredited laboratory and requirements for
information disclosure.
(c) The criteria are tailored and interpreted for the test methods,
types of test methods, products, services or standards of the relevant
LAP. These tailored criteria are the technical requirements for
accreditation developed through the procedures of 7.15.
(d) In applying the conditions, criteria, and technical requirements
for accreditation, NVLAP shall not:
(1) Prohibit accreditation solely on the basis of a laboratory's
affiliation or nonaffiliation with manufacturing, distributing, or
vending organizations, or because the laboratory is a foreign firm; or
(2) Develop, modify, or promulgate test methods, standards, or
comparable administrative rules.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.32 Conditions for accreditation.
(a) To become accredited and maintain accreditation, a laboratory
shall agree in writing to:
(1) Be assessed and evaluated initially and on a periodic basis;
(2) Demonstrate, on request, that it is able to perform the tests
representative of those for which it is seeking accreditation;
(3) Pay all relevant fees;
(4) Participate in proficiency testing as required:
(5) Be capable of performing the tests for which it is accredited
according to the latest version of the test method within one year after
its publication or within another time limit specified by NVLAP;
(6) Limit the representation of the scope of its accreditation to
only those tests or services for which accreditation is granted;
(7) Limit all its test work or services for clients to those areas
where competence and capacity are available;
(8) Limit advertising of its accredited status to letterheads,
brochures, test reports, and professional, technical, trade or other
laboratory services publications, and use the NVLAP logo under guidance
provided by NVLAP;
(9) Inform its clients that the laboratory's accreditation or any of
its test reports in no way constitutes or implies product certification,
approval, or endorsement by NIST;
(10) Maintain records of all actions taken in response to testing
complaints for a minimum of one year;
(11) Maintain an independent decisional relationship between itself
and its clients, affiliates, or other organizations so that the
laboratory's capacity to render test reports objectively and without
bias is not adversely affected;
(12) Report to NVLAP within 30 days any major changes involving the
location, ownership, management structure, authorized representative,
approved signatories, or facilities of the laboratory; and
(13) Return to NVLAP the certificate of accreditation for possible
revision or other action should it:
(i) Be requested to do so by NVLAP;
(ii) Voluntarily terminate its accredited status; or
(iii) Become unable to conform to any of these conditions or the
applicable criteria of 7.33 and related technical requirements.
(b) To become accredited and maintain accreditation, a laboratory
shall supply, upon request, the following information:
(1) Legal name and full address;
(2) Ownership of the laboratory;
(3) Organization chart defining relationships that are relevant to
performing testing covered in the accreditation request;
(4) General description of the laboratory, including its facilities
and scope of operation;
(5) Name and telephone number of the authorized representative of the
laboratory;
(6) Names or titles and qualifications of laboratory staff nominated
to serve as approved signatories of test reports that reference NVLAP
accreditation; and
(7) Other information as may be needed for the specific LAP(s) in
which accreditation is sought.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.33 Criteria for accreditation.
(a) Quality system. (1) The laboratory shall operate under an
internal quality assurance program appropriate to the type, range, and
volume of work performed. The quality assurance program must be
designed to ensure the required degree of accuracy and precision of the
laboratory's work and should include key elements of document control,
sample control, data validation, and corrective action. The quality
assurance program must be documented in a quality manual or equivalent
(e.g., operations notebook) which is available for use by laboratory
staff. A person(s) must be identified as having responsibility for
maintaining the quality manual.
(2) The quality manual must include as appropriate:
(i) The laboratory's quality assurance policies including procedures
for corrective action for detected test discrepancies;
(ii) Quality assurance responsibilities for each fuction of the
laboratory;
(iii) Specific quality assurance practices and procedures for each
test, type of test, or other specifically delineated function performed;
(iv) Specific procedures for retesting, control charts, reference
materials, and interlaboratory tests; and
(v) Procedures for dealing with testing complaints.
(3) The laboratory shall periodically review its quality assurance
system by or on behalf of management to ensure it's continued
effectiveness. These reviews must be recorded with details of any
corrective action taken.
(b) Staff. (1) The laboratory shall:
(i) Be staffed by individuals having the necessary education,
training, technical knowledge, and experience for their assigned
functions; and
(ii) Have a job description for each professional, scientific,
supervisory and technical position, including the necessary education,
training, technical knowledge, and experience.
(2) The laboratory shall document the test methods each staff member
has been assigned to perform.
(3) The laboratory shall have a description of its training program
for ensuring that new or untrained staff are able to perform tests
properly and uniformly to the requisite degree of precision and
accuracy.
(4) The laboratory shall be organized:
(i) So that staff members are not subjected to undue pressure or
inducement that might influence their judgment or results of their work;
and
(ii) In such a way that staff members are aware of both the extent
and the limitation of their area of responsibility.
(5) The laboratory shall have a technical manager (or similar title)
who has overall responsibility for the technical operations of the
laboratory.
(6) The laboratory shall have one or more signatories approved by
NVLAP to sign test reports that reference NVLAP accreditation. Approved
signatories shall:
(i) Be competent to make a critical evaluation of test results; and
(ii) Occupy positions within the laboratory's organization which
makes them responsible for the adequacy of test results.
(c) Facilities and equipment. (1) The laboratory shall be furnished
with all items of equipment and facilities for the correct performance
of the tests and measurements for which accreditation is granted and
shall have adequate space, lighting, and environmental control, and
monitoring to ensure compliance with prescribed testing conditions.
(2) All equipment must be properly maintained to ensure protection
from corrosion and other causes of deterioration. Instructions for a
proper maintenance procedure for those items of equipment which require
periodic maintenance must be available. Any item of equipment or
component thereof which has been subjected to overloading or
mishandling, gives suspect results, or has been shown by calibration or
otherwise to be defective, must be taken out of service and clearly
labelled until it has been repaired. When placed back in service, this
equipment must be shown by test or calibration to be performing its
function satisfactorily.
(3) Records of each major item of equipment must be maintained. Each
record must include:
(i) The name of the item of equipment;
(ii) The manufacturer's name and type, identification and serial
number;
(iii) Date received and date placed in service;
(iv) Current location, where appropriate;
(v) Details of maintenance; and
(vi) Date of last calibration, next calibration due date, and
calibration report references.
(d) Calibration. The laboratory shall:
(1) Calibrate new testing equipment before putting it into service;
(2) Recalibrate, at regular intervals, in-service testing equipment
with the calibration status readily available to the operator;
(3) Perform checks of in-service testing equipment between the
regular calibration intervals, where relevant;
(4) Maintain adequate records of all calibrations and recalibrations;
and
(5) Provide traceability of all calibrations and reference standards
of measurement where these standards exist. Where traceability of
measurements to primary (national or international) standards is not
applicable, the laboratory shall provide satisfactory evidence of the
accuracy or reliability of test results (e.g., by participation in a
suitable program of interlaboratory comparison).
(e) Test methods and procedures. The laboratory shall:
(1) Conform in all respects with the test methods and procedures
required by the specifications against which the test item is to be
tested, except that whenever a departure becomes necessary for technical
reasons the departure must be acceptable to the client and recorded in
the test report;
(2) Have data to prove that any departures from standard methods
and/or procedures due to apparatus design or for other reasons do not
detract from the expected or required precision of the measurement;
(3) Maintain a test plan for implementing testing standards and
procedures including adequate instructions on the use and operation of
all relevant equipment, on the handling and preparation of test items
(where applicable), and on standard testing techniques where the absence
of such instructions could compromise the test. All instructions,
testing standards, specifications, manuals, and reference data relevant
to the work of the laboratory must be kept up-to-date and made readily
available to the staff;
(4) Maintain measures for the detection and resolution of in-process
testing discrepancies for manual and automatic test equipment and
electronic data processing equipment, where applicable;
(5) Maintain a system for identifying samples or items to be tested,
which remains in force from the date of receipt of the item to the date
of its disposal, either through documents or through marking to ensure
that there is no confusion regarding the identity of the samples or test
items and the results of the measurements made; and
(6) Maintain rules for the receipt, retention, and disposal of test
items, including procedures for storage and handling precautions to
prevent damage to test items which could invalidate the test results.
Any relevant instructions provided with the tested item must be
observed.
(f) Records. The laboratory shall:
(1) Maintain a record system which contains sufficient information to
permit verification of any issued report;
(2) Retain all original observations, calculations and derived data,
and calibration records for one year unless a longer period is
specified; and
(3) Hold records secure and in confidence, as required.
(g) Test reports. (1) The laboratory shall issue test reports of its
work which accurately, clearly, and unambiguously present the specified
test results and all required information. Each test report must
include the following information as applicable:
(i) Name and address of the laboratory;
(ii) Identification of the test report by serial number, date, or
other appropriate means;
(iii) Name and address of client;
(iv) Description and identification of the test specimen, sample, or
lot of material represented;
(v) Identification of the test specification, method, or procedure
used;
(vi) Description of sampling procedure, if appropriate;
(vii) Any deviations, additions to, or exclusions from the test
specifications;
(viii) Measurements, examinations, and derived results supported by
tables, graphs, sketches, and photographs, as appropriate, and any
failures identified;
(ix) A statement of measurement uncertainty, where relevant;
(x) Identification of the organization and the person accepting
technical responsibility for the test report and date of issue;
(xi) A statement that the report must not be reproduced except in
full with the approval of the laboratory; and
(xii) A statement to the effect that the test report relates only to
the items tested.
(2) The laboratory shall issue corrections or additions to a test
report only by a further document suitably marked, e.g. ''Supplement to
test report serial number * * * ,'' which meets the relevant
requirements of 7.33(g)(1).
(3) The laboratory shall retain a copy of each test report issued for
one year unless a longer period is specified by NVLAP.
(4) The laboratory shall ensure that all test reports endorsed with
the NVLAP logo are signed by an approved signatory.
(49 FR 44623, Nov. 8, 1984, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 7.33 Pt. 8
15 CFR 7.33 PART 8 -- NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF COMMERCE -- EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
15 CFR 7.33 Subpart A -- General Provisions; Prohibitions:
Nondiscrimination Clause; Applicability to Programs
Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.
15 CFR 7.33 Subpart B -- General Compliance
8.7 Cooperation, compliance reports and reviews and access to
records.
8.8 Complaints.
8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions;
coordination.
Appendix A -- Programs Covered By Title VI
Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).
Source: 38 FR 17938, July 5, 1973, unless otherwise noted.
15 CFR 7.33 Subpart A -- General Provisions; Prohibitions: Nondiscrimination Clause; Applicability to Programs
15 CFR 8.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as the ''Act'')
to the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program receiving Federal financial assistance from the
Department of Commerce. This part is consistent with achievement of the
objectives of the statutes authorizing the financial assistance given by
the Department of Commerce as provided in section 602 of the Act.
15 CFR 8.2 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the federally assisted programs listed in Appendix A to this
part and as said Appendix may be amended. It applies to money paid,
property transferred, or other Federal financial assistance extended
under any such program after January 9, 1965, pursuant to an application
approved prior to such effective date.
(b) This part does not apply to (1) any Federal financial assistance
by way of insurance or guaranty contracts, (2) money paid, property
transferred, or other assistance extended under any such program before
January 9, 1965, except where such assistance was subject to the title
VI regulations of this Department or of any other agency whose
responsibilities are now exercised by this Department, (3) any
assistance to any individual who is the ultimate beneficiary under any
such program, or (4) any employment practice, under any such program, of
any employer, employment agency, or labor organization except to the
extent described in 8.4(c). The fact that a program is not listed in
Appendix A shall not mean, if title VI of the Act is otherwise
applicable, that such program is not covered. Other programs under
statutes now in force or hereinafter enacted may be added to the list by
notice published in the Federal Register.
15 CFR 8.3 Definitions.
(a) Department means the Department of Commerce, and includes each
and all of its operating and equivalent other units.
(b) Secretary means the Secretary of Commerce.
(c) United States means the States of the United States, the District
of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake
Island, the Canal Zone, and the territories and possessions of the
United States, and the term State means anyone of the foregoing.
(d) Person means an individual in the United States who is or is
eligible to be a participant in or an ultimate beneficiary of any
program which receives Federal financial assistance, and includes an
individual who is an owner or member of a firm, corporation, or other
business or organization which is or is eligible to be a participant in
or an ultimate beneficiary of such a program. Where a primary objective
of the Federal financial assistance to a program is to provide
employment, ''person'' includes employees or applicants for employment
of a recipient or other party subject to this part under such program.
(e) Responsible department official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. It also means any officials so designated by
due delegation of authority within the Department to act in such
capacity with regard to any program under this part.
(f) Federal financial assistance includes (1) grants, loans, or
agreements for participation in loans, of Federal funds, (2) the grant
or donation of Federal property or interests in property, (3) the sale
or lease of, or the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property or
in property in which the Federal Government has an interest, without
consideration, or at a nominal consideration, or at a consideration
which is reduced, for the purpose of assisting the recipient, or in
recognition of the public interest to be served by such sale or lease to
or use by the recipient, (4) waiver of charges which would normally be
made for the furnishing of Government services, (5) the detail of
Federal personnel, (6) technical assistance, and (7) any Federal
agreement, arrangement, contract, or other instrument which has as one
of its purposes the provision of assistance.
(g) Program includes any program, project, or activity for the
planning or provision of services, financial aid, property, other
benefits, or facilities for furnishing services, financial aid,
property, or other benefits, whether provided by the recipient or by
others through contracts or other arrangements with the recipient, with
the aid of Federal financial assistance, or with the aid of any
non-Federal funds, property, facilities or other resources which are
provided to meet the conditions under which Federal financial assistance
is extended or which utilizes federally assisted property, facilities or
resources.
(h) Facility includes all or any portion of structures, equipment,
vessels, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration, contract for use, or acquisition of
facilities.
(i) Recipient means any governmental, public or private agency,
institution, organization, or other entity, or any individual, who or
which is an applicant for Federal financial assistance, or to whom
Federal financial assistance is extended directly or through another
recipient for or in connection with any program. Recipient further
includes a subgrantee, an entity which leases or operates a facility for
or on behalf of a recipient, and any successors, assignees, or
transferees of any kind of the recipient, but does not include any
person who is an ultimate beneficiary under any program.
(j) Primary recipient means any recipient which is authorized or
required to extend or distribute Federal financial assistance to another
recipient for the purpose of carrying out a program.
(k) Applicant means one who submits an application, request, or plan
required to be approved by a responsible Department official, or by a
primary recipient, as a condition to eligibility for Federal financial
assistance, and ''application'' means such an application, request, or
plan.
(l) Other parties subject to this part includes any governmental,
public or private agency, institution, organization, or other entity, or
any individual, who or which, like a recipient, is not to engage in
discriminatory acts with respect to applicable persons covered by this
part, because of his or its direct or substantial participation in any
program, such as a contractor, subcontractor, provider of employment, or
user of facilities or services provided under any program.
15 CFR 8.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory acts prohibited. (1) A recipient of
Federal financial assistance, or other party subject to this part under
any program to which this part applies, shall not participate, directly
or through contractual or other arrangements, in any act or course of
conduct which, on the ground of race, color, or national origin:
(i) Denies to a person any service, financial aid, or other benefit
provided under the program;
(ii) Provides any service, financial aid, or other benefit, to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subjects a person to segregation or separate or other
discriminatory treatment in any matter related to his receipt (or
nonreceipt) of any such service, financial aid, property, or other
benefit under the program.
(iv) Restricts a person in any way in the enjoyment of services,
facilities, or any other advantage, privilege, property, or benefit
provided to others under the programs;
(v) Treats a person differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Denies a person an opportunity to participate in the program
through the provision of property or services or otherwise, or affords
him an opportunity to do so which is different from that afforded others
under the program (including the opportunity to participate in the
program as an employee but only to the extent set forth in paragraph (c)
of this section);
(vii) Denies a person the same opportunity or consideration given
others to be selected or retained or otherwise to participate as a
contractor, subcontractor, or subgrantee when a program is applicable
thereto;
(viii) Denies a person the opportunity to participate as a member of
a planning or advisory body which is an integral part of the program.
(2) A recipient, or other party subject to this part under any
program, 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 persons to whom, or the situations in which, such
services, financial aid, other benefits, or facilities will be provided
under any such program, or the class of persons to be afforded an
opportunity to participate in any such program, shall not, directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin, or have
the effect of defeating or substantially impairing accomplishment of the
objectives of the program as respect any persons of a particular race,
color, or national origin.
(3) In determining the site or location of facilities, a recipient or
other party subject to this part may not make selections with the
purpose or effect of excluding persons from, denying them the benefits
of, or subjecting them to discrimination under any program to which this
part applies, on the grounds of race, color or national origin; or with
the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act or this part.
(4) As used in this section, the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided or made available in or through or utilizing a facility
provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in
this paragraph and paragraph (c) of this section does not limit the
generality of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in
administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient or other party subject to this part
shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, use of facilities, and treatment of employees). Such
recipients and other parties subject to this part shall take affirmative
action to ensure that applicants are employed, and employees are treated
during employment without regard to their race, color, or national
origin. Such recipients and other parties subject to this part shall,
as may be required by supplemental regulations, develop a written
affirmative action program. The requirements applicable to construction
employment under any such program shall be in addition to those
specified in or pursuant to Part III of Executive Order 11246 or any
Executive order which supersedes it. Federal financial assistance to
programs under laws funded or administered by the Department which has
as a primary objective the providing of employment include those set
forth in Appendix A II of this part.
(2) Where a primary objective of the Federal financial assistance to
a program to which this part applies is not to provide employment, but
discrimination on the grounds of race, color, or national origin, in the
employment practices of the recipient or other party subject to this
part, tends, on the grounds of race, color, or national origin, to
exclude persons from participating in, to deny them the benefits of, or
to subject them to discrimination under any such program, the provisions
of paragraph (c)(1) of this section shall apply to the employment
practices of the recipient or other party subject to this part, to the
extent necessary to assure equality of opportunity to, and
nondiscriminatory treatment of such persons.
(38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973)
15 CFR 8.5 Nondiscrimination clause.
(a) Applicability. Every application for, and every grant, loan, or
contract authorizing approval of, Federal financial assistance to carry
out a program and to provide a facility subject to this part, and every
modification or amendment thereof, shall, as a condition to its approval
and to the extension of any Federal financial assistance pursuant
thereto, contain or be accompanied by an assurance that the program will
be conducted in compliance with all requirements imposed by or pursuant
to this part. The assurances shall be set forth in a nondiscrimination
clause. The responsible Department official shall specify the form and
contents of the nondiscrimination clause for each program as
appropriate.
(b) Contents. Without limiting its scope or language in any way, a
nondiscrimination clause shall contain, where determined to be
appropriate, and in an appropriate form, reference to the following
assurances, undertakings, and other provisions:
(1) That the recipient or other party subject to this part will not
participate directly or indirectly in the discrimination prohibited by
8.4, including employment practices when a program covering such is
involved.
(2) That when employment practices are covered, the recipient or
other party subject to this part will (i) in all solicitations or
advertisements for employees placed by or for the recipient, state that
qualified applicants will receive consideration for employment without
regard to race, color, or national origin; (ii) notify each labor union
or representative of workers with which it has a collective bargaining
agreement or other contract or understanding of the recipient's
commitments under this section; (iii) post the nondiscrimination clause
and the notice to labor unions in conspicuous places available to
employees and applicants for employment; and (iv) otherwise comply with
the requirements of 8.4(c).
(3) That in a program involving continuing Federal financial
assistance, the recipient thereunder (i) will state that the program is
(or, in the case of a new program, will be) conducted in compliance with
all requirements imposed by or pursuant to this part, and (ii) will
provide for such methods of administration for the program as are found
by the responsible Department official to give reasonable assurance that
all recipients of Federal financial assistance under such program and
any other parties connected therewith subject to this part will comply
with all requirements imposed by or pursuant to this part.
(4) That the recipient agrees to secure the compliance or to
cooperate actively with the Department to secure the compliance by
others with this part and the nondiscrimination clause as may be
directed under an applicable program. For instance, the recipient may
be requested by the responsible Department official to undertake and
agree (i) to obtain or enforce or to assist and cooperate actively with
the responsible Department official in obtaining or enforcing, the
compliance of other recipients or of other parties subject to this part
with the nondiscrimination required by this part; (ii) to insert
appropriate nondiscrimination clauses in the respective contracts with
or grants to such parties; (iii) to obtain and to furnish to the
responsible Department official such information as he may require for
the supervision or securing of such compliance; (iv) to carry out
sanctions for noncompliance with the obligations imposed upon recipients
and other parties subject to this part; and (v) to comply with such
additional provisions as the responsible Department official deems
appropriate to establish and protect the interests of the United States
in the enforcement of these obligations. In the event that the
cooperating recipient becomes involved in litigation with a noncomplying
party as a result of such departmental direction, the cooperating
recipient may request the Department to enter into such litigation to
protect the interests of the United States.
(5) In the case of real property, structures or improvements thereon,
or interests therein, which are acquired for a program receiving Federal
financial assistance, or in the case where Federal financial assistance
is provided in the form of a transfer of real property or interest
therein from the Federal Government, the instrument effecting or
recording the transfer shall contain a covenant running with the land
assuring nondiscrimination for the period during which the real property
is used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits, or for as long as the recipient retains ownership
or possession of the property, whichever, is longer. Where no transfer
of property is involved, but property is improved with Federal financial
assistance, the recipient shall agree to include such a covenant in any
subsequent transfer of such property. Where the property is obtained
from the Federal Government, such covenant may also include a condition
coupled with a right to be reserved by the Department to revert title to
the property in the event of a breach of the covenant where, in the
discretion of the responsible Department official, such a condition and
right of reverter is appropriate to the program under which the real
property is obtained and to the nature of the grant and the grantee. In
such event if a transferee of real property proposes to mortgage or
otherwise encumber the real property as security for financing
construction of new, or improvement of existing facilities on such
property for the purposes for which the property was transferred, the
responsible Department official may agree, upon request of the
transferee and if necessary to accomplish such financing, and upon such
conditions as he deems appropriate to forebear the exercise of such
right to revert title for so long as the lien of such mortgage or other
encumbrance remains effective.
(6) In programs receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real property
to the extent that rights to space on, over, or under any such property
are included as part of the program receiving such assistance the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(7) That a recipient shall not take action that is calculated to
bring about indirectly what this part forbids it to accomplish directly.
(8) Provisions specifying the extent to which like assurances will be
required of subgrantees, contractors and subcontractors, lessees,
transferees, successors in interest, and other participants in the
program.
(9) Provisions which give the United States a right to seek judicial
enforcement of the assurances.
(10) In the case where any assurances are required from an academic,
a medical care, detention or correctional, or any other institution or
facility, insofar as the assurances relate to the institution's
practices with respect to the admission, care, or other treatment of
persons by the institution or with respect to the opportunity of persons
to participate in the receiving or providing of services, treatment, or
benefits, such assurances shall be applicable to the entire institution
or facility. That requirement may be waived by the responsible
Department official if the party furnishing the assurances establishes
to the satisfaction of the responsible Department official that the
practices in designated parts or programs of the institution or facility
will in no way affect its practices in the program of the institution or
facility for which Federal financial assistance is or is sought to be
provided, or affect the beneficiaries of or participants in such
program. If in any such case the assistance is or is sought for the
construction of a facility or part of a facility, the assurances shall
in any event extend to the entire facility and to facilities operated in
connection therewith.
(11) In the case where the Federal financial assistance is in the
form of or to aid in the acquisition of personal property, or real
property or interest therein or structures thereon, the assurance shall
obligate the recipients, or, in the case of a subsequent transfer, the
transferee, for the period during which the property is used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services and
benefits, or for as long as the recipient or transferee retains
ownership or possession of the property, whichever is longer. In the
case of any other type or form of assistance, the assurances shall be in
effect for the duration of the period during which Federal financial
assistance is extended to the program.
(38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973)
15 CFR 8.6 Applicability of this part to Department assisted programs.
The following examples illustrate the applicability of this part to
programs which receive or may receive Federal financial assistance
administered by the Department. The fact that a particular program is
not listed does not indicate that it is not covered by this part, The
discrimination referred to is that described in 8.4 against persons on
the ground of race, color, or national origin.
(a) Assistance to support economic development programs.
Discrimination in which recipients and other parties subject to this
part shall not engage, directly or indirectly, includes discrimination
in (1) the letting of contracts or other arrangements for the planning,
designing, engineering, acquisition, construction, rehabilitation,
conversion, enlargement, installation, occupancy, use, maintenance,
leasing, subleasing, sales, or other utilization or disposition of
property or facilities purchased or financed in whole or in part with
the aid of Federal financial assistance; (2) the acquisition of goods
or services, or the production, preparation, manufacture, marketing,
transportation, or distribution of goods or services in connection with
a program or its operations; (3) the onsite operation of the project or
facilities; (4) services or accommodations offered to the public in
connection with the program; and (5) in employment practices in
connection with or which affect the program (as defined in 8.4(c)); in
the following programs:
(i) Any program receiving Federal financial assistance for the
purchase or development of land and facilities (including machinery and
equipment) for industrial or commercial usage.
(ii) Any program receiving Federal financial assistance in the form
of loans or direct or supplementary grants for the acquisition or
development of land and improvements for public works, public service or
development facility usage, and the acquisition, construction,
rehabilitation, alteration, expansion, or improvement of such
facilities, including related machinery and equipment.
(iii) In any program receiving any form of technical assistance
designed to alleviate or prevent conditions of excessive employment or
underemployment.
(iv) In any program receiving Federal financial assistance in the
form of administrative expense grants.
(b) Assistance to support the training of students. A current
example of such assistance is that received by State maritime academies
or colleges, by contract, of facilities (vessels), related equipment and
funds to train merchant marine officers. In this and other student
training programs, discrimination which is prohibited by recipients and
other parties subject to this part includes discrimination in the
selection of persons to be trained and in their treatment by the
recipients in any aspect of the educational process and discipline
during their training, or in the availability or use of any academic,
housing, eating, recreational, or other facilities and services, or in
financial assistance to students furnished or controlled by the
recipients or incidental to the program. In any case where selection of
trainees is made from a predetermined group, such as the students in an
institution or area, the group must be selected without discrimination.
(c) Assistance to support mobile or other trade fairs. In programs
in which operators of mobile trade fairs using U.S. flag vessels and
aircraft and designed to exhibit and sell U.S. products abroad, or in
which other trade fairs or exhibitions, receive technical and financial
assistance, discrimination which is prohibited by recipients and other
parties subject to this part includes discrimination in the selection or
retention of any actual or potential exhibitors, or in access to or use
of the services or accommodations by, or otherwise with respect to
treatment of, exhibitors or their owners, officers, employees, or
agents.
(d) Assistance to support business entities eligible for trade
adjustment assistance. In programs in which eligible business entities
receive any measure or kind of technical, financial or tax adjustment
assistance because of or in connection with the impact of U.S.
international trade upon such business, discrimination which is
prohibited by recipients and other parties subject to this part includes
discrimination in their employment practices as defined in 8.4(c).
(e) Assistance to support research and development and related
activities. In programs in which individuals, educational or other
institutions, public governmental or business entities receive Federal
financial assistance in order to encourage or foster research or
development activities as such, or to obtain, promote, develop, or
protect thereby technical, scientific, environmental, or other
information, products, facilities, resources, or services which are to
be made available to or used by others; but where such programs do not
constitute Government procurement of property or services,
discrimination which is prohibited by recipients and other parties
subject to this part includes discrimination with respect to (1) the
choice, retention or treatment of contractors, subcontractors,
subgrantees or of any other person; (2) the provision of services,
facilities, or financial aid; (3) the participation of any party in the
research activities; (4) the dissemination to or use by any person of
the results or benefits of the research or development, whether in the
form of information, products, services, facilities, resources, or
otherwise. If research is performed within an educational institution
under which it is expected that students or others will participate in
the research as a part of their experience or training, on a compensated
or uncompensated basis, there shall be no discrimination in admission of
students to, or in their treatment by, that part of the school from
which such students are drawn or in the selection otherwise of trainees
or participants. The recipient educational institutions will be
required to give the assurances provided in 8.5(b)(10).
(f) Assistance to aid in the operations of vessels engaged in U.S.
foreign commerce. In programs in which the operators of American-flag
vessels used to furnish shipping services in the foreign commerce of the
United States receive Federal financial assistance in the form of
operating differential subsidies, discrimination which is prohibited by
recipients and other parties subject to this part includes
discrimination in soliciting, accepting or serving in any way passengers
or shippers of cargo entitled to protection in the United States under
the Act.
15 CFR 8.6 Subpart B -- General Compliance
15 CFR 8.7 Cooperation, compliance reports and reviews and access to
records.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients and other parties subject to this part in obtaining
compliance with this part and shall provide assistance and guidance to
recipients and other parties to help them comply voluntarily with this
part.
(b) Compliance reports. Each recipient and other party subject to
this part shall keep such records and submit to the responsible
Department official timely, complete, and accurate compliance reports at
such times and in such form and containing such information as the
responsible Department official may determine to be necessary to enable
him to ascertain whether the recipient or such other party has complied
or is complying with this part. In general, recipients should have
available for the department racial and ethnic data showing the extent
to which members of minority groups are beneficiaries of federally
assisted programs. In the case of any program under which a primary
recipient extends Federal financial assistance to any other recipient,
or under which a recipient is obligated to obtain or to cooperate in
obtaining the compliance of other parties subject to this part, such
other recipients or other parties shall also submit such compliance
reports to the primary recipient or recipients as may be necessary to
enable them to carry out their obligations under this part.
(c) Access to sources of information. Each recipient or other party
subject to this part shall permit access by the responsible Department
official or his designee during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities, as may be pertinent to ascertain compliance with this part.
Where any information required of a recipient or other party is in the
exclusive possession of another who fails or refuses to furnish this
information, the recipient or other party shall so certify in its report
and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient or
other party subject to this part shall make available to participants,
beneficiaries, and other interested persons such information regarding
the provisions of this part and its applicability to the program under
which the recipient receives Federal financial assistance, and make such
information available to them in such manner as this part and the
responsible Department official finds necessary to apprise such persons
of the protections against discrimination assured them by the Act and
this part.
(e) Compliance review. The responsible Department official or his
designee shall from time to time review the practices of recipients and
other parties subject to this part to determine whether they are
complying with this part.
15 CFR 8.8 Complaints.
(a) Filing complaints. Any person who believes himself or any
specific class of persons to be subjected to discrimination prohibited
by this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint shall
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
15 CFR 8.9 Intimidatory or retaliatory acts prohibited.
(a) No recipient or other party subject to this part shall
intimidate, threaten, coerce, or discriminate against, any person for
the purpose of interfering with any right or privilege secured by
section 601 of the Act of this part, or because the person has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part.
(b) The identity of complainants shall be kept confidential except to
the extent necessary to carry out the purposes of this part, including
the conduct of any investigation, hearing, or judicial or other
proceeding arising thereunder.
15 CFR 8.10 Investigations.
(a) Making the investigation. The responsible Department official or
his designee will make a prompt investigation whenever a compliance
review, report, complaint, or any other information indicates a possible
failure to comply with this part. The investigation shall include,
where appropriate, a review of the pertinent practices and policies of
the recipient or other party subject to this part, the circumstances
under which the possible noncompliance with this part occurred, and
other factors relevant to a determination as to whether there has been a
failure to comply with this part.
(b) Resolution of matters. (1) If an investigation pursuant to
paragraph (a) of this section indicates a failure to comply with this
part, the responsible Department official will so inform the recipient
or other party subject to this part and the matter will be resolved by
informal means whenever possible. If it has been determined that the
matter cannot be resolved by informal means, action will be taken as
provided for in 8.11.
(2) If an investigation does not warrant action pursuant to paragraph
(b)(1) of this section, the responsible Department official will so
inform the recipient or other party subject to this part and the
complainant, if any, in writing.
15 CFR 8.11 Procedures for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractural undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with 8.5. If a recipient or other party subject to
this part fails or refuses to furnish an assurance required under 8.5
or otherwise fails or refuses to comply with a requirement imposed by or
pursuant to that section, Federal financial assistance may be refused in
accordance with the procedures of paragraph (c) of this section. The
Department shall not be required to provide assistance in such a case
during the pendency of the administrative proceedings under said
paragraph except that the Department shall continue assistance during
the pendency of such proceedings where such assistance is due and
payable pursuant to an application or contract therefor approved prior
to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible Department official has advised the recipient
or other party subject to this part of his failure to comply and has
determined that compliance cannot be secured by voluntary means, (2)
there has been an express finding on the record, after opportunity for
hearing, of a failure by such recipient or other party to comply with a
requirement imposed by or pursuant to this part, (3) the action has been
approved by the Secretary pursuant to 8.13(e), and (4) the expiration
of 30 days after the Secretary has filed with the committee of the House
and the committee of the Senate having legislative jurisdiction over the
program involved, a full written report of the circumstances and the
grounds for such action. Any action to suspend or terminate or to
refuse to grant or to continue Federal financial assistance shall be
limited to the particular political entity, or part thereof, or other
recipient or other party as to whom such a finding has been made and
shall be limited in its effect to the particular program, or part
thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other party has been
notified of its failure to comply and of the action to be taken to
effect compliance, and (3) the expiration of at least 10 days from the
mailing of such notice to the recipient or other party. During this
period of at least 10 days additional efforts shall be made to persuade
the recipient or other party to comply with this part and to take such
corrective action as may be appropriate.
15 CFR 8.12 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 8.11(c), reasonable notice shall be given by registered
or certified mail, return receipt requested, to the affected recipient
or other party subject to this part. This notice shall advise the
recipient or other party of the action proposed to be taken, the
specific provision under which the proposed action against it is to be
taken, and the matters of fact or law asserted as the basis for this
action, and either (1) fix a date not less than 20 days after the date
of such notice within which the recipient or other party may request of
the responsible Department official that the matter be scheduled for
hearing, or (2) advise the recipient or other party that the matter in
question has been set down for hearing at a stated place and time. The
time and place so fixed shall be reasonable and shall be subject to
change for cause. The complainant, if any, shall be advised of the time
and place of the hearing. A recipient or other party may waive a
hearing and submit written information and argument for the record. The
failure of a recipient or other party to request a hearing under this
paragraph of this section or to appear at a hearing for which a date has
been set shall be deemed to be a waiver of the right to a hearing under
section 602 of the Act and 8.11(c) and consent to the making of a
decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, D.C., at a time fixed by the
responsible Department official or hearing officer unless he determines
that the convenience of the recipient or other party or of the
Department requires that another place be selected. Hearings shall be
held before the responsible Department official, or at his discretion,
before a hearing officer.
(c) Right to counsel. In all proceedings under this section, the
recipient or other party and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedures Act),
and in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the recipient or other party shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
Secretary may, by agreement with such other departments or agencies
where applicable, provide for the conduct of consolidated or joint
hearings and for the application to such hearings of rules of procedures
not inconsistent with this part. Final decisions in such cases, insofar
as this part is concerned, shall be made in accordance with 8.13.
15 CFR 8.13 Decisions and notices.
(a) Decision by person other than the responsible Department
official. If the hearing is held by a hearing officer such hearing
officer shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the recipient or other party subject to this part. Where the
initial decision is made by the hearing officer, the recipient or other
party may within 30 days of the mailing of such notice of initial
decision file with the responsible Department official his exceptions to
the initial decision, with his reasons therefor. In the absence of
exceptions, the responsible Department official may on his own motion
within 45 days after the initial decision serve on the recipient or
other party a notice that he will review the decision. Upon the filing
of such exceptions or of such notice of review, the responsible
Department official shall review the initial decision and issue his own
decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible Department official.
(b) Decisions on record or review by the responsible Department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing officer
pursuant to paragraph (a) of this section, or whenever the responsible
Department official conducts the hearing, the recipient or other party
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
recipient or other party and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to 8.12(a) a decision shall be made by the
responsible departmental official on the record and a copy of such
decision shall be given in writing to the recipient or other party, and
to the complainant, if any.
(d) Ruling required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient or other party has failed to
comply.
(e) Approval by Secretary. Any final decision of a responsible
Department official (other than the Secretary) which provides for the
suspension or termination of, or the refusal to grant or continue,
Federal financial assistance, or the imposition of any other sanction
available under this part of the Act, shall promptly be transmitted to
the Secretary, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, under the program involved, 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 will thereafter be extended under such program to the
recipient or other party determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the responsible Department
official that it will fully comply with this part.
(g) Posttermination proceedings. (1) Any recipient or other party
which is adversely affected by an order issued under paragraph (f) of
this section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any recipient or other party adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the recipient or other
party has met the requirements of paragraph (g)(1) of this section. If
the responsible Department official determines that those requirements
have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the recipient or other party may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record in accordance with rules of procedure issued by the
responsible Department official. The recipient or other party will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
15 CFR 8.14 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
15 CFR 8.15 Effect on other laws; supplementary instructions;
coordination.
(a) Effect on other laws. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
individuals on the ground of race, color, or national origin under any
program to which this part applies, and which authorizes the suspension
or termination of or refusal to grant or to continue Federal financial
assistance to any recipient or other party subject to this part of such
assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any one of any obligations assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to January 9, 1965. Nothing in this part, however,
shall be deemed to supersede any of the following (including future
amendments thereof):
(1) Executive Order 11246 and regulations issued thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other regulations or instructions, insofar as such order, regulations,
or instructions prohibit discrimination on the ground of race, color, or
national origin in any program or situation to which this part is
inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible Department official
shall issue and promptly make available to interested parties forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in 8.13), including
the achievement of effective coordination and maximum uniformity within
the Department and within the executive branch of the government in the
application of title VI and this part to similar programs and in similar
situations. Any action taken, determination made, or requirement
imposed by an official of another Department or agency acting pursuant
to an assignment of responsibility under this paragraph shall have the
same effect as though such action had been taken by the responsible
official of this Department.
15 CFR 8.15 Pt. 8, App. A
15 CFR 8.15 Appendix A -- Programs Covered by Title VI
1. Loans, grants, technical and other assistance for public works and
development facilities, for supplementing Federal grants-in-aid, for
private businesses, and for other purposes, including assistance in
connection with designated economic development districts and regions
(Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3121 et seq.).
2. Financial and technical assistance to firms to aid economic
adjustment to the effects of increased imports in direct competition
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
3. Assistance to communities adversely affected by increased imports
in direct competition with products manufactured in the community area
(Trade Act of 1974, 19 U.S.C. 2371-2374.
4. Assistance to projects involving construction of local and State
public facilities in order to reduce unemployment and provide State and
local governments with badly needed public facilities (Local Public
Works Capital Development and Assistance Act of 1976, 42 U.S.C.
6701-6710).
5. Trade adjustment assistance: Loans, dissemination of technical
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).
1. Operating differential subsidy assistance to operators of U.S.
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).
2. Assistance to operate State maritime academies and colleges to
train merchant marine officers (46 U.S.C. 1381-1388).
3. Ship construction differential subsidies, direct payments
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).
1. Grants to universities and other research organizations for fire
research and safety programs (15 U.S.C. 278f).
1. Academy planning assistance: To assist States in the development
of training and education in the fire prevention and control area (15
U.S.C. 2201-2219).
2. State fire incident reporting assistance: To assist States in the
establishment and operation of a statewide fire incident and casualty
reporting system (15 U.S.C. 2201-2219).
3. Public education assistance planning: Publications, audiovisual
presentations and demonstrations, research, testing, and experimentation
to determine the most effective means for such public education (15
U.S.C. 2205c).
4. Policy development assistance: Studies of the operations and
management aspects of fire services (15 U.S.C. 2207c).
1. Assistance to States, educational institutions, and the commercial
fishing industry for the development of tuna and other latent fisheries
(16 U.S.C. 758e).
2. Assistance to States for the development and implementation of
programs to protect and study certain species of marine mammals (16
U.S.C. 1379b).
3. Financial assistance to States with agencies which have entered
into a cooperative agreement to assist in the preservation of threatened
and endangered species (16 U.S.C. 1535).
4. Assistance to coastal States for the development of estuarine
sanctuaries to serve as field laboratories and for acquiring access to
public beaches (16 U.S.C. 1461).
5. Assistance to coastal States for the development, implementation,
and administration of coastal zone management programs (16 U.S.C.
1454-1455).
6. Assistance to coastal States to help communities in dealing with
the economic, social, and environmental consequences resulting from
expanded coastal energy activity (16 U.S.C. 1456).
7. Authority to enter into cooperative agreements with ''colleges and
universities, with game and fish departments of the several States, and
with nonprofit organizations relating to cooperative research units.''
Assistance limited to assignment of personnel, supplies, and incidental
expenses (16 U.S.C. 753 a and b).
8. Grants for education and training of personnel in the field of
commercial fishing, ''to public and nonprofit private universities and
colleges * * *'' (16 U.S.C. 760d).
9. Grants for ''office and any other necessary space'' for the
Northern Pacific Halibut Commission (16 U.S.C. 772).
10. The ''Dingell Johnson Act'': Apportionment of dollars to States
for restoration and management of sport or recreational species (16
U.S.C. 777-777i; 777k).
11. Authority to cooperate with and provide assistance to States in
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
12. Authority to cooperate with and provide assistance to certain
States and territories in the study and control of ''Crown of Thorns''
starfish (16 U.S.C. 1211-1213).
13. Technical assistance to fishing cooperatives regarding catching
and marketing aquatic products (15 U.S.C. 521-522).
14. Fish research and experimentation program cooperation with other
agencies in acquisition of lands, construction of buildings, employment
of personnel in establishing and maintaining research stations (16
U.S.C. 778a).
15. Assistance to upgrade commercial fishing vessels and gear (16
U.S.C. 742c).
16. Assistance to State projects designed for the research and
development of commercial fisheries resources of the nation (16 U.S.C.
779a-779f).
17. Assistance to State and other non-Federal interests under
cooperative agreements to conserve, develop, and enhance anadromous and
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
18. Grants and other assistance under the National Sea Grant College
and Program Act of 1966: To support establishment of major university
centers for marine research, education, training, and advisory services
(33 U.S.C. 1121-1124).
19. Geodetic surveys and services; advisory services; dissemination
of technical information (33 U.S.C. 883a).
20. Nautical charts assistance; advisory services; dissemination of
technical information (33 U.S.C. 883a).
21. River and flood forecast and warning services; advisory services
(15 U.S.C. 313).
22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49
U.S.C. 1351 and 1463).
23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
24. Provision for the Weather Service to assist in joint projects
''of mutual interest'' (15 U.S.C. 1525).
1. Grants for the planning and construction of public
telecommunications facilities for the production and distribution of
noncommercial educational and cultural radio and television programming
and related instructional and informational materials. (Public
Telecommunications Financing Act of 1978, 47 U.S.C. Sections 390-394).
1. Assistance to minority business enterprises: Grants, contracts,
advisory service, technical information (15 U.S.C. 1512; title III of
the Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).
1. Supplemental grants to Federal grant-in-aid programs and technical
assistance funds for planning, investigations, studies, training
programs, and demonstration projects, including demonstrations in
energy, transportation, health and nutrition, education and indigenous
arts and crafts (title V of the Public Works and Economic Development
Act of 1965, as amended, 42 U.S.C. 3181-3196).
1. Assistance to strengthen the domestic and foreign commerce of the
United States, and to promote friendly understanding and appreciation of
the United States by encouraging foreign residents to visit the United
States (22 U.S.C. 2121 et seq.).
1. Authority to make basis scientific research grants (42 U.S.C.
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).
1. Public Works and Economic Development Act of 1965, as amended (42
U.S.C. 3121 et seq.).
2. Trade Act of 1974 (19 U.S.C. 2341-2354).
3. Local Public Works Capital Development and Assistance Act of 1976
(42 U.S.C. 6701-6710)
(43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979)
15 CFR 8.15 PART 8a -- ( RESERVED)
15 CFR 8.15 PART 8b -- PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN FEDERALLY ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF COMMERCE
15 CFR 8.15 Subpart A -- General Provisions
Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance
procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect
of employment opportunities.
15 CFR 8.15 Subpart B -- Employment Practices
8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.
8b.14 Preemployment inquiries.
8b.15 Employment on ships.
15 CFR 8.15 Subpart C -- Program Accessibility
8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.
15 CFR 8.15 Subpart D -- Post Secondary Education
8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.
15 CFR 8.15 Subpart E -- Procedures
8b.26 Procedures.
Authority: 29 U.S.C. 794.
Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.
15 CFR 8.15 Subpart A -- General Provisions
15 CFR 8b.1 Purpose.
Section 504 of the Rehabilitation Act of 1973, as amended, prohibits
discrimination on the basis of handicap in any program or activity
receiving or benefiting from Federal financial assistance. The purpose
of this part is to implement section 504 with respect to programs and
activities receiving or benefiting from Federal financial assistance
from the Department of Commerce.
15 CFR 8b.2 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Commerce and to each program receiving or
benefiting from such assistance. The requirements of this part do not
apply to the ultimate beneficiaries of Federal financial assistance in
the program receiving Federal financial assistance.
15 CFR 8b.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and by the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C.
794 (1976 & Supp. II 1978)).
(b) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a recipient as a condition to becoming a recipient.
(c) Department means the Department of Commerce and any of its
constituent units authorized to provide Federal financial assistance.
(d) Facility means all or any portion of buildings, ships,
structures, equipment, roads, walks, parking lots, industrial parks, or
other real or personal property or interest in such property.
(e) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guarantee), or any other arrangement by which the Department provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if
the Federal share of its fair market value is not returned to the
Federal Government.
(f) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (g) of this section.
(g) ''Handicapped person.''
(1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) For purposes of employment, the term ''handicapped person'' does
not include any person who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents that individual from performing the
duties of the job in question, or whose employment, because of current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others.
(3) As used in paragraph (g)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities;
(C) The term ''physical or mental impairment'' includes, but is not
limited to, such diseases and conditions as orthopedic, visual speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, working, and receiving education or vocational
training.
(iii) Has a record of such an impairment means that the individual
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life
activities.
(iv) Is regarded as having an impairment means that the individual:
(A) Has a physical or mental impairment that does not substantially
limit major life activities, but that is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(C) Has none of the impairments defined in paragraph (g)(3)(i) of
this section, but is treated by a recipient as having such an
impairment.
(h) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to post secondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity;
(3) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(i) Recipient means any State or its political subdivisions, any
instrumentality of a State or its political subdivisions, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
indirectly through another recipient, or including any successor,
assignee, or transferee of a recipient, but excluding the ultimate
beneficiary of the assistance.
(j) Secretary means the Secretary of Commerce, U.S. Department of
Commerce.
(k) Section 504 means section 504 of the Act.
(l) Small recipient means a recipient who serves fewer than 15
beneficiaries and who employs fewer than 15 employees at all times
during a grant year.
15 CFR 8b.4 Discrimination prohibited.
(a) General. No qualified handicapped individual shall, on the basis
of handicap, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination under any program or
activity that receives or benefits from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped individual the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped individual an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped individual with any aid,
benefit, or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped individuals or to any class of handicapped individuals,
unless such action is necessary to provide qualified handicapped
individuals with aid, benefits, or services that are as effective as
those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
individual by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any aid, benefit, or service to beneficiaries of the
recipient's program;
(vi) Deny a qualified handicapped individual the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped individual in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefits, or services.
(2) For purposes of this part, aid, benefits, and services must
afford handicapped individuals an equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement as afforded to others, in the most integrated setting
appropriate to the individual's needs. However, aid, benefits and
services, to be equally effective, need not produce the identical result
or level of achievement for handicapped and nonhandicapped individuals.
(3) A recipient may not deny a qualified handicapped individual the
opportunity to participate in its regular programs or activities,
despite the existence of separate or different programs or activities
which are established in accordance with this part.
(4) A recipient may not, directly or through contractual or other
arrangements, use criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped
individuals to discrimination on the basis of handicap;
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped individuals; or
(iii) That perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same state.
(5) In determining the geographic site or location of a facility, an
applicant for assistance or a recipient may not make selections:
(i) That have the effect of excluding handicapped individuals from,
denying them the benefit of, or otherwise subjecting them to
discrimination under any program or activity that receives or benefits
from Federal financial assistance; or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped individuals.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefiting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased, rented or otherwise acquired, in whole or in part, with Federal
financial assistance.
(7)(i) In providing services under programs of Federal financial
assistance, recipients to which this subpart applies, except small
recipients, shall ensure that no handicapped participant is denied the
benefits of, excluded from participation in, or otherwise subjected to
discrimination under the program or activity operated by the recipient
because of the absence of auxiliary aids for participants with impaired
sensory, manual or speaking skills. A recipient shall operate each
program or activity to which this subpart applies so that, when viewed
in its entirety, auxiliary aids are readily available. The Secretary
may require small recipients to provide auxiliary aids in order to
ensure that no handicapped participant is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
under the program or activity operated by small recipients, when this
would not significantly impair the ability of the small recipient to
provide benefits or services.
(ii) Auxiliary aids may include brailled and taped materials,
interpreters, telecommunications devices, or other equally effective
methods of making orally delivered information available to persons with
hearing impairments, readers for persons with visual impairments,
equipment adapted for use by persons with manual impairments, and other
similar devices and actions. Recipients need not provide attendants,
individually prescribed devices, readers for personal use or study, or
other devices or services of a personal nature.
(c) Programs limited by Federal law. The exclusion of
non-handicapped persons from the benefits of a program limited by
Federal statute or Executive order to handicapped individuals, or the
exclusion of a specific class of handicapped individuals from a program
limited by Federal statute or Executive order to a different class of
handicapped individuals is not prohibited by this part.
(d) Integrated setting. Recipients shall administer programs and
activities in the most integrated setting appropriate to the needs of
qualified handicapped individuals.
(e) Communications with individuals with impaired vision and hearing.
Recipients shall ensure that communications with their applicants,
employees and beneficiaries are available to persons with impaired
vision or hearing. Appropriate modes of communication may include
braille, enlarged type, sign language and telecommunications devices.
15 CFR 8b.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an
assurance, on a form specified by the Secretary, that the program will
be operated in compliance with this part. An applicant may incorporate
these assurances by reference in subsequent applications to the
Department.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or structures on the
property, the assurance will obligate the recipient or, in the case of a
subsequent transfer, the transferee, for the period during which the
real property or structures are used for the purpose for which Federal
financial assistance is extended, or for another purpose involving the
provision of similar services or benefits.
(2) In case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases, the assurance will obligate the recipient for
the period during which Federal financial assistance is extended or the
federally-funded program is operated, whichever is longer.
(c) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the
Department, the instrument effecting or recording this transfer shall
contain a covenant running with the land to assure nondiscrimination for
the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits.
(2) Where no transfer or property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (c)(1) of
this section in the instrument effecting or recording any subsequent
transferee of the property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant shall also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant. If a transferee of real property proposed
to mortgage or otherwise encumber the real property as security to
finance construction of new, or improvement of existing, facilities on
the property for the purposes for which the property was transferred,
the Secretary may agree to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance
remains effective. Such an agreement by the Secretary may be entered
into only upon the request of the transferee (recipient) if it is
necessary to accomplish such financing and upon such terms and
conditions as the Secretary deems appropriate.
(d) Interagency agreements. Where funds are granted by the
Department to another Federal agency to carry out a program under a law
administered by the Department, and where the grant obligates the
recipient agency to comply with the rules and regulations of the
Department applicable to that grant the provisions of this part shall
apply to programs and activities operated with such funds.
15 CFR 8b.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Secretary deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another recipient exercises control over the recipient that has
discriminated, the Secretary, where appropriate, may require either or
both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action:
(i) With respect to handicapped individuals who would have been
participants in the program had the discrimination not occurred; and
(ii) With respect to handicapped persons who are no longer
participants in the recipient's program, but who were participants in
the program when the discrimination occurred; and
(iii) with respect to employees and applicants for employment.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped individuals.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate, with the assistance of interested persons, including
handicapped individuals or organizations representing handicapped
individuals, its current policies and practices and the effects thereof
that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, any policies and practices that do not meet the
requirements of this part; and
(iii) Take, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient, other than a small recipient, shall for at least
three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) The Secretary may, as he or she deems necessary, direct
recipients to conduct additional self-evaluations, in accordance with
the requirements of paragraph (c)(1) of this section.
(Approved by the Office of Management and Budget under control number
0605-0006)
(47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16,
1982)
15 CFR 8b.7 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. A recipient, other than a
small recipient, shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient, other than a
small recipient, shall adopt grievance procedures that incorporate
appropriate due process standards and that provide for the prompt and
equitable resolution of complaints alleging any action prohibited by
this part. Such procedures need not be established with respect to
complaints from applicants for employment or from applicants for
admission to post secondary educational institutions.
15 CFR 8b.8 Notice.
(a) A recipient, other than a small recipient, shall take appropriate
initial and continuing steps to notify participants, beneficiaries,
applicants and employees, including those with impaired vision or
hearing, and unions or professional organizations holding collective
bargaining or professional agreements with the recipient, that it does
not discriminate on the basis of handicap in violation of Section 504
and of this part. The notification shall state, where appropriate, that
the recipient does not discriminate in the admission or access to, or
treatment or employment in, its programs and activities. The
notification shall also include an identification of the responsible
employee designated pursuant to 8b.7(a). A recipient shall make the
initial notification required by this paragraph within 90 days of the
effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publications in
newspapers and magazines, placement of notices in recipient's
publications, and distribution of memoranda or other written
communication. A recipient shall take appropriate steps to ensure that
notice is available to persons with impaired vision or hearing.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information made available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications, or by revising and reprinting the materials
and publications.
15 CFR 8b.9 Administrative requirements for small recipients.
The Secretary may require small recipients to comply with 8b.7 and
8b.8, in whole or in part, when the Secretary finds a violation of this
part or finds that such compliance will not significantly impair the
ability of the small recipient to provide benefits or services.
15 CFR 8b.10 Effect of state or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped individuals to
receive services, participate in programs, or practice any occupation or
profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped individuals than
for nonhandicapped persons.
15 CFR 8b.10 Subpart B -- Employment Practices
15 CFR 8b.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped individual shall, on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives or benefits from Federal financial
assistance.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this subparagraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeship programs.
(b) Specific activities. The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising and the processing of applicants for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation; pension or other benefit the applicant or employee
receives from any other source.
15 CFR 8b.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or metal limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(b) Reasonable accommodation may include:
(1) Making the facilities used by the employees in the area where the
program is conducted, including common areas used by all employees such
as hallways, restrooms, cafeterias and lounges, readily accessible to
and usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number of participants, number and type of
facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
(e) Nothing in this paragraph shall relieve a recipient of its
obligation to make its program accessible as required in Subpart C of
this part, or to provide auxiliary aids, as required by 8b.4(b)(7).
15 CFR 8b.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped
individuals or any class of handicapped individuals unless;
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped individuals are not shown by
the Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment so as best to ensure that, when administered to an applicant
or employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately to reflect the applicant's or
employee's job skills aptitude, or whatever factor the test purports to
measure, rather than reflecting the applicant's or employee's impaired
sensory, manual, or speaking skills (except where those skills are the
factors that the test purports to measure).
15 CFR 8b.14 Preemployment inquires.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct preemployment inquiry of an applicant for
employment as to whether the applicant is a handicapped individual, or
as to the nature or severity of a handicap. A recipient may, however,
make preemployment inquiry into an applicant's ability to perform
job-related functions.
(b) When a recipient is taking remedial action to correct the effects
of past discrimination pursuant to 8b.6(a), when a recipient is taking
voluntary action to overcome the effects of conditions that resulted in
limited participation in this federally assisted program or activity
pursuant to 8b.6(b), or when a recipient is taking affirmative action
pursuant to section 503 of the Act, the recipient may invite applicants
for employment to indicate whether and to what extent they are
handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That:
(1) All employees are subject to such an examination regardless of
handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except:
(1) Employing officials may obtain the information after making a
conditional decision to make a job offer to the applicant or the
applicant was placed conditionally in a job pool or placed conditionally
on an eligibility list;
(2) Supervisors and managers may be informed regarding restrictions
on the work or duties of qualified handicapped individuals and regarding
necessary accommodations;
(3) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(4) Government officials investigating compliance with the Act shall
be provided information upon request.
15 CFR 8b.15 Employment on ships.
No qualified handicapped individual possessing an appropriate license
or certificate obtained from the United States Coast Guard pursuant to
the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et seq. shall,
on the basis of handicap, be subjected to discrimination in employment
on ships under any program or activity to which this part applies.
15 CFR 8b.15 Subpart C -- Program Accessibility
15 CFR 8b.16 Discrimination prohibited.
No qualified handicapped individual shall, because a recipient's
facilities are inaccessible to or unusable by handicapped individuals,
be denied the benefits of, be excluded from participation in, or
otherwise be subjected to discrimination under any program or activity
to which this part applies.
15 CFR 8b.17 Existing facilities.
(a) Program accessibility. A recipient shall operate each program or
activity to which this part applies so that the program or activity,
when viewed in its entirety, is readily accessible to qualified
handicapped individuals. This paragraph does not require a recipient to
make each of its existing facilities or every part of a facility
accessible to and usable by qualified handicapped individuals. However,
if a particular program is available in only one location, that site
must be made accessible or the program must be made available at an
alternative accessible site or sites. Program accessibility requires
nonpersonal aids to make the program accessible to mobility impaired
persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aides to beneficiaries, home visits, delivery
of services at alternate accessible sites, alteration of existing
facilities and construction of new facilities in conformance with the
requirement of 8b.19, or any other method that results in making its
program or activity accessible to handicapped individuals. A recipient
is not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with paragraph (a)
of this section. In choosing among available methods for meeting the
requirement of paragraph (a) of this section, a recipient shall give
priority to those methods that offer programs and activities to
handicapped individuals in the most integrated setting appropriate.
(c) If a small recipient finds, after consultation with a qualified
handicapped individual seeking its services, that there is no method of
complying with paragraph (a) of this section other than making a
significant alteration in its existing facilities or facility, the small
recipient may, as an alternative, refer the qualified handicapped
individual to other providers of those services that are accessible at
no additional cost to the handicapped.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this part. Where structural changes in facilities are necessary, such
changes shall be made within three years of the effective date of this
part, but in any event as expeditiously as possible.
(e) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within six months of the
effective date of this part, a transition plan setting forth the steps
necessary to complete such changes. The plan shall be developed with
the assistance of interested persons, including handicapped persons or
organizations representing handicapped persons. A copy of the
transition plan shall be made available for public inspection. The plan
shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to qualified
handicapped individuals;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period of the transition
plan is longer than one year, identify the steps that will be taken
during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information as to the existence and location of
services, activities and facilities that are accessible to and usable by
qualified handicapped individuals.
(Approved by the Office of Management and Budget under control number
0605-0006)
(47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16,
1982)
15 CFR 8b.18 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of the
facility is readily accessible to and usable by qualified handicapped
individuals, if the construction was commenced after the effective date
of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is
readily accessible to and usable by qualified handicapped individuals.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of August 17, 1990, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
(47 FR 17746, Apr. 23, 1982, as amended at 55 FR 29320, Jul. 18,
1990)
15 CFR 8b.18 Subpart D -- Post Secondary Education
15 CFR 8b.19 Application of this subpart.
Subpart D applies to post secondary education programs and
activities, including post secondary vocational education programs and
activities, that receive or benefit from Federal financial assistance
for the operation of, such programs or activities.
15 CFR 8b.20 Admission and recruitment.
(a) General. Qualified handicapped may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient
to which this subpart applies:
(1) May not apply limitations upon the number or proportion of
handicapped individuals who may be admitted; and
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped individuals or any
class of handicapped individuals unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available.
(3) Shall assure itself that (i) admissions tests are selected and
administered so as best to ensure that, when a test is administered to
an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level of whatever other factor the test purports
to measure, rather than reflecting the applicant's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills
are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that,
on the whole, are accessible to handicapped individuals; and
(4) Except as provided in paragraph (c) of this section, may not make
pre-admission inquiry as to whether an applicant for admission is a
handicapped individual but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Pre-admission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to 8b.6(a) or when a recipient is taking voluntary action to overcome
the effects of conditions that resulted in limited participation in its
federally assisted program or activity pursuant to 8b.6(b), the
recipient may invite applicants for admission to indicate whether and to
what extent they are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
15 CFR 8b.21 Treatment of students.
(a) General. No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic research,
occupational training, housing, health insurance, counseling, financial
aid, physical education, athletics, recreation, transportation, other
extracurricular, or other post secondary education program or activity
to which this subpart applies.
(b) A recipient to which this subpart applies that considers
participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, education
programs or activities operated by the recipient shall assure itself
that the other education program or activity, as a whole, provides an
equal opportunity for the participation of qualified handicapped
persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap exclude any qualified handicapped student from any course or
study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
programs and activities in the most integrated setting appropriate.
15 CFR 8b.22 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies
shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have
the effect of discriminating, on the basis of handicap, against a
qualified handicapped applicant or student. Academic requirements that
the recipient can demonstrate are essential to the program of
instruction being pursued by such student or to any directly related
licensing requirement will not be regarded as discriminatory within the
meaning of this section. Modifications may include changes in the
length of time permitted for the completion of degree requirements,
substitution of specific courses required for the completion of degree
requirements, and adaptation of the manner in which specific courses are
conducted.
(b) Other rules. A recipient to which this subpart applies may not
impose upon handicapped students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides in campus buildings, that
have the effect of limiting the participation of handicapped students in
the recipient's education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating student's academic achievement in its program,
a recipient to which this subpart applies shall provide such methods for
evaluating the achievement of students who have a handicap that impairs
sensory, manual, or speaking skills as will best ensure that the results
of the evaluation represents the student's achievement in the course,
rather than reflecting the student's impaired sensory, manual, or
speaking skills (except where such skills are the factors that the test
purports to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies
shall ensure that no handicapped student is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
under the education program or activity operated by the recipient
because of the absence of educational auxiliary aids for students with
impaired sensory, manual, or speaking skills. A recipient shall operate
each program or activity to which this subpart applies so that, when
viewed in its entirety, auxiliary aids are readily available.
(2) Auxiliary aids may include taped text, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
15 CFR 8b.23 Housing provided by the recipient.
(a) A recipient that provides housing to its nonhandicapped students
shall provide comparable, convenient, and accessible housing to
handicapped students at the same cost as to others. At the end of
transition period provided for in Subpart C, such housing shall be
available in sufficient quantity and variety so that the scope of
handicapped students choice of living accommodations is, as a whole,
comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall take such action as may be necessary to assure itself
that such housing is, as a whole, made available in a manner that does
not result in discrimination on the basis of handicap.
15 CFR 8b.24 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped individuals, a recipient to which
this subpart applies may not (i) on the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility
for assistance, or otherwise discriminate or (ii) assist any entity or
person that provides assistance to any of the recipient's students in a
manner that discriminates against qualified handicapped individuals on
the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trust, bequest, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that such
employment opportunities, as a whole, are made available in a manner
that would not violate Subpart B if they were provided by the recipient.
(c) Employment of student by recipients. A recipient that employs
any of its students may not do so in a manner that violates Subpart B.
15 CFR 8b.25 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to
any of its students, a recipient to which this subpart applies may not
discriminate on the basis of handicap. A recipient that offers physical
education courses or that operates or sponsors intercollegiate, club, or
intramural athletics shall provide to qualified handicapped students an
equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation of differentiation is consistent with the requirements of
8b.22(d) and only if no qualified handicapped student is denied the
opportunity to compete for teams or to participate in courses that are
not separate or different.
(b) Counseling and placement services. A recipient to which this
subpart applies that provides personal, academic, or vocational
counseling guidance, or placement services to its students shall provide
these services without discrimination on the basis of handicap. The
recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities. This
requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may
present obstacles to handicapped persons in their pursuit of particular
careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of such organizations do not
permit discrimination otherwise prohibited by this subpart.
15 CFR 8b.25 Subpart E -- Procedures
15 CFR 8b.26 Procedures.
The enforcement provisions applicable to Title VI of the Civil Rights
Act of 1964 found at 8.7 through 8.15 of this subtitle shall apply to
this part.
15 CFR 8b.26 PART 8c -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF
COMMERCE
Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4 -- 8c.9 (Reserved)
8c.10 Self-evaluation.
8c.11 Notice.
8c.12 -- 8c.29 (Reserved)
8c.30 General prohibitions against discrimination.
8c.31 -- 8c.39 (Reserved)
8c.40 Employment.
8c.41 -- 8c.48 (Reserved)
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52 -- 8c.59 (Reserved)
8c.60 Communications.
8c.61 -- 8c.69 (Reserved)
8c.70 Compliance procedures.
Authority: 29 U.S.C 794.
Source: 53 FR 19277, May 27, 1988, unless otherwise noted.
15 CFR 8c.1 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
15 CFR 8c.2 Application.
This part applies to all programs or activities conducted by the
agency except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
15 CFR 8c.3 Definitions.
For purposes of this part, the term --
''Agency'' means the Department of Commerce.
''Assistant Attorney General'' means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
''Auxiliary aids'' means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
''Complete complaint'' means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
''Facility'' means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
''Individual with handicaps'' means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) ''Physical or mental impairment'' includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ''physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism
(2) ''Major life activities'' includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) ''Has a record of such an impairment'' means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) ''is regarded as having an impairment'' means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
towards such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
''Qualified individual with handicaps'' means --
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) ''Qualified handicapped person'' as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by 8c.40.
''Section 504'' means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 )Pub. L. 95-602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810). As used in this part, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
(53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988)
8c.4 -- 8c.9 (Reserved)
15 CFR 8c.10 Self-evaluation.
(a) The agency shall, by July 26, 1989, evaluate its current policies
and practices, and the effects thereof, that do not or may not meet the
requirements of this part, and, to the extent modification of any such
policies and practices is required, the agency shall proceed to make the
necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
15 CFR 8c.11 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the Secretary of
Commerce or the Secretary's designee finds necessary to apprise such
persons of the protections against discrimination assured them by
section 504 and this regulation.
8c.12 -- 8c.29 (Reserved)
15 CFR 8c.30 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of a planning or advisory board; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicaps; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program with respect to individuals with handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
8c.31 -- 8c.39 (Reserved)
15 CFR 8c.40 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR Part 1613, shall apply to employment in federally conducted
programs or activities.
8c.41 -- 8c.48 (Reserved)
15 CFR 8c.49 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 8c.50, no qualified individual with
handicaps shall, because the agency's facilities are inaccessible to or
unusable by individuals with handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
15 CFR 8c.50 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with section 8c.50(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Secretary of Commerce or
the Secretary's designee after considering all agency resources
available for use in the funding and operation of the conducted program
or activity, and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action would result in such
an alteration or such burdens, the agency shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with handicaps receive the benefits
and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the agency shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by September 26, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by July 26, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by January 26, 1989, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its program or activities to individuals with
handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
15 CFR 8c.51 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
8c.52 -- 8c.59 (Reserved)
15 CFR 8c.60 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applications and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signs at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 8c.60 would result in
such alteration or burdens. The decision that compliance would result
in such alteration of burdens must be made by the Secretary of Commerce
or the Secretary's designee after considering all agency resources
available for use in the funding and operation of the conducted program
or activity, and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action required to comply
with this section would result in such an alteration or such burdens,
the agency shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that, to the
maximum extent possible, individuals with handicaps receive the benefits
and services of the program or activity.
8c.61 -- 8.69 (Reserved)
15 CFR 8c.70 Compliance procedures
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Chief of the Compliance Divison shall be responsible for
coordinating implemention of this section. Complaints may be sent to
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert
C. Hoover Building, 14th and Constitution Avenue, Washington, DC,
20230.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 8c.70(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the Assistant
Secretary for Administration.
(j) The Assistant Secretary for Administration shall notify the
complainant of the results of the appeal within 60 days of the receipt
of the request. If the Assistant Secretary for Administration
determines that additional information is needed from the complainant,
he or she shall have 60 days from the date of receipt of the additonal
information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of the section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988)
15 CFR 8c.70 PART 9 -- PROCEDURES FOR A VOLUNTARY LABELING PROGRAM FOR
HOUSEHOLD APPLIANCES AND EQUIPMENT TO EFFECT ENERGY CONSERVATION
Sec.
9.0 Purpose.
9.1 Goal of program.
9.2 Definitions.
9.3 Appliances and equipment included in program.
9.4 Development of voluntary energy conservation specifications.
9.5 Participation of manufacturers.
9.6 Termination of participation.
9.7 Department of Commerce energy conservation mark.
9.8 Amendment or revision of voluntary energy conservation
specifications.
9.9 Consumer education.
9.10 Coordination with State and local programs.
9.11 Annual report.
Authority: Sec. 2, 31 Stat. 1449, as amended, sec. 1, 64 Stat.
371; 15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI;
Message from the President of the United States Concerning Energy
Resources, April 18, 1973 (119 Cong. Rec. H2886).
Source: 38 FR 29574, Oct. 26, 1973, unless otherwise noted.
15 CFR 9.0 Purpose.
The purpose of this part is to establish procedures relating to the
Department's voluntary labeling program for household appliances and
equipment to promote and effect energy conservation.
15 CFR 9.1 Goal of program.
(a) This program was initiated in response to the direction of
President Nixon in his 1973 Energy Message that the Department of
Commerce in cooperation with the Council on Environmental Quality and
the Environmental Protection Agency develop a voluntary labeling program
which would apply to energy-consuming home appliances.
(b) The goal of this program is to encourage manufacturers to provide
consumers, at the point of sale, with information on the energy
consumption and energy efficiency of household appliances and equipment.
Such information, presented in a uniform manner readily understandable
to consumers, would be displayed on Labels attached to or otherwise
provided with the appliances or equipment. The Labels will include a
system intended to make it possible for consumers to compare by cost or
otherwise the energy consumption and energy efficiency characteristics
when purchasing household appliances and equipment and to select those
that can effect savings in energy consumption.
15 CFR 9.2 Definitions.
(a) The term Secretary means the Secretary of Commerce.
(b) The term manufacturer means any person engaged in the
manufacturing or assembling of new appliances or equipment in the United
States, or in the importing of such products for sale or resale, or any
person whose brand or trademark appears on such products who owns such
brand or trademark and has authorized its use on such products, if the
brand or trademark of the person actually manufacturing or assembling
the products does not appear on the products.
(c) The term energy consumption means the energy resources used by
appliances or equipment under conditions of use approximating actual
operating conditions insofar as practical as determined through test
procedures contained or identified in a final Voluntary Energy
Conservation Specification published under 9.4(e).
(d) The term energy efficiency means the energy use of appliances or
equipment relative to their output of services, as determined through
test procedures contained or identified in a final Voluntary Energy
Conservation Specification published under 9.4(e).
(e) The term consumer means the first person who purchases a new
appliance or item of equipment for purposes other than resale.
(f) The term class of appliance or equipment means a group of
appliances or equipment whose functions or features are similar, and
whose functional output covers a range that may be of interest to
consumers.
(g) The term Specification means a Voluntary Energy Conservation
Specification developed under 9.4.
(h) The term Label means printed matter affixed to or otherwise
provided with appliances or equipment and meeting all the requirements
called for in a Voluntary Energy Conservation Specification published
under 9.4(e).
(38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13,
1975)
15 CFR 9.3 Appliances and equipment included in program.
The appliances and equipment included in this program are room and
central air conditioners, household refrigerators, home freezers,
clothes washers, dishwashers, clothes dryers, kitchen ranges and ovens,
water heaters, comfort heating equipment, and television receivers.
Additional appliances and equipment may be included in the program by
the Secretary pursuant to rule making procedures as set out in 5 U.S.C.
553. Individual units of appliances and equipment manufactured for
export are not included in this program.
(38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13,
1975)
15 CFR 9.4 Development of voluntary energy conservation specifications.
(a) The Secretary in cooperation with appropriate Federal agencies
and in cooperation with affected manufacturers, distributors, retailers,
consumers, environmentalists, and other interested parties shall develop
proposed Specifications for the specific classes of appliances and
equipment covered under 9.3.
(b) Each Specification shall as a minimum include:
(1) A description of the class of appliance or equipment covered by
the Specification, listing the distribution of energy efficiencies for
that class of appliance or equipment.
(2) Listings or descriptions of test methods to be used in measuring
the energy consumption and/or energy efficiency characteristics of the
class of appliance or equipment.
(3) A prototype Label and directions for displaying the Label on or
with appliances or equipment of that class. The Label shall be
prominent, readable, and visible and shall include information that will
assist the consumer in comparing by cost or otherwise the energy
consumption and/or energy efficiency characteristics of a particular
appliance or item of equipment with all others in its class. The Label
shall also include the Department of Commerce Energy Conservation Mark
specified in 9.7.
(4) Conditions for the participation of manufacturers in the program.
(c) The test methods listed or described in the Specification
pursuant to 9.4(b)(2) shall be those described in existing
nationally-recognized voluntary standards where such methods are
appropriate. Where appropriate test methods do not so exist, they will
be developed by the Department of Commerce in cooperation with
interested parties.
(d) The Secretary upon development of a proposed Specification shall
publish in the Federal Register a notice giving the complete text of the
proposed Specification, and any other pertinent information, and
inviting any interested person to submit written comments on the
proposed Specification within 30 days after its publication in the
Federal Register, unless another time limit is provided by the
Secretary. Interested persons wanting to express their views in an
informal hearing may do so if, within 15 days after the proposed
Specification is published in the Federal Register, they request the
Secretary to hold a hearing. Such informal hearings shall be held so as
to give all interested persons opportunity for the oral presentation of
data, views, or arguments in addition to the opportunity to make written
submissions. Notice of such hearings shall be published in the Federal
Register. A transcript shall be kept of any oral presentations.
(e) The Secretary, after consideration of all written and oral
comments and other materials received in accordance with paragraph (d)
of this section, shall publish in the Federal Register within 30 days
after the final date for receipt of comments, or as soon as practicable
thereafter, a notice either:
(1) Giving the complete text of a final Specification, including
conditions of use, and stating that any manufacturer of appliances or
equipment in the class concerned desiring voluntarily to use the Label
and Energy Conservation Mark with such appliances or equipment must
advise the Department of Commerce; or
(2) Stating that the proposed Specification will be further developed
before final publication; or
(3) Withdrawing the proposed Specification from further
consideration.
15 CFR 9.5 Participation of manufacturers.
(a) Manufacturers desiring to participate in this program will so
notify the Department of Commerce. The notification will identify the
particular Specification to be used and the manufacturer's model numbers
for the products to be labeled. The notification will also state that
the manufacturer will abide by all conditions contained in the
Specification and will desist from using the Label and Energy
Conservation Mark if requested by the Department of Commerce under the
provisions of 9.6.
(b) The conditions for participation will be set out in the
Specification and will include, but not be limited to, the following:
(1) Prior to the use of a Label the manufacturer will make or have
made the measurements to obtain the information required for inclusion
on the Label and, if requested, will forward within 30 days such
measurement data to the Department of Commerce. Such measurement data
will be kept on file by the manufacturer or his agent for two years
after that model of appliance or equipment is no longer manufactured
unless otherwise provided in the Specification. The use of independent
test laboratories or national certification programs available to any
manufacturer is acceptable for the purposes of this program.
(2) The manufacturer will describe the test results on the Label as
prescribed in the Specification.
(3) The manufacturer will display or arrange to display, in
accordance with the appropriate Specification, the Label on or with each
individual unit of appliance or equipment within the subject class and
with the same brand name manufactured by him except for units exported
from the United States. All models with the same brand name that fall
within the class must be included in the program unless they are for
export only.
(4) The manufacturer agrees at his expense to comply with any
reasonable request of the Department of Commerce to have appliances or
equipment manufactured by him tested to determine that testing has been
done according to the relevant Specification.
(5) Manufacturers may reproduce the Department of Commerce Labels and
Energy Conservation Mark in advertising provided that the entire Label,
complete with all information required to be displayed at the point of
retail sale, is shown legibly.
15 CFR 9.6 Termination of participation.
(a) The Department of Commerce upon finding that a manufacturer is
not complying with the conditions of participation set out in these
procedures or in a Specification may terminate upon 30 days notice the
manufacturer's participation in the program: Provided, That the
manufacturer shall first be given an opportunity to show cause why the
participation should not be terminated. Upon receipt of a notice of
termination, a manufacturer may request within 30 days a hearing under
the provisions of 5 U.S.C. 558.
(b) A manufacturer may at any time terminate his participation and
responsibilities under this program with regard to a specific class of
products by giving written notice to the Secretary that he has
discontinued use of the Label and Energy Conservation Mark for all
appliances or equipment within that class.
15 CFR 9.7 Department of Commerce energy conservation mark.
The Department of Commerce shall develop an Energy Conservation Mark
which shall be registered in the U.S. Patent Office under 15 U.S.C. 1054
for use on each Label described in a Specification.
15 CFR 9.8 Amendment or revision of voluntary energy conservation
specifications.
The Secretary may by order amend or revise any Specification
published under 9.4. The procedure applicable to the establishment of a
Specification under 9.4 shall be followed in amending or revising such
Specification. Such amendment or revision shall not apply to appliances
or equipment manufactured prior to the effective date of the amendment
or revision.
15 CFR 9.9 Consumer education.
The Department of Commerce, in close cooperation and coordination
with interested Government agencies, appropriate industry trade
associations and industry members, and interested consumers and
environmentalists shall carry out a program to educate consumers
relative to the significance of the labeling program. Some elements of
this program shall also be directed toward informing retailers and other
interested groups about the program.
15 CFR 9.10 Coordination with State and local programs.
The Department of Commerce will establish and maintain an active
program of communication with appropriate state and local government
offices and agencies and will furnish and make available information and
assistance that will promote to the greatest practicable extent
uniformity in State, local, and Federal programs for the labeling of
household appliances and equipment to effect energy conservation.
15 CFR 9.11 Annual report.
The Secretary will prepare an annual report of activities under the
program, including an evaluation of the program and a list of
participating manufacturers and classes of appliances and equipment.
15 CFR 9.11 PART 10 -- PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY
PRODUCT STANDARDS
Sec.
10.0 General.
10.1 Initiating development of a new standard.
10.2 Funding.
10.3 Development of a proposed standard.
10.4 Establishment of the Standard Review Committee.
10.5 Development of a recommended standard.
10.6 Procedures for acceptance of a recommended standard.
10.7 Procedure when a recommended standard is not supported by a
consensus.
10.8 Standing Committee.
10.9 Publication of a standard.
10.10 Review of published standards.
10.11 Revision or amendment of a standard.
10.12 Editorial changes.
10.13 Withdrawal of a published standard.
10.14 Appeals.
10.15 Interpretations.
10.16 Effect of procedures.
Authority: Sec. 2.31 Stat. 1449, as amended, sec. 1, .64 Stat 371;
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI (3 CFR
1943-1948 Comp., p. 1065).
Source: 51 FR 22497, June 20, 1986, unless otherwise noted.
15 CFR 10.0 General.
(a) Introduction. The Department of Commerce (hereinafter referred
to as the ''Department'') recognizes the importance, the advantages, and
the benefits of voluntary standards and standardization activities.
Such standards may cover, but are not limited to, terms, classes, sizes
(including quantities of packaged consumer commodities), dimensions,
capacities, quality levels, performance criteria, inspection
requirements, marking requirements, testing equipment, test procedures
and installation procedures. Economic growth is promoted through:
(1) Reduction of manufacturing costs, inventory costs, and
distribution costs;
(2) Better understanding among manufacturers, producers, or packagers
(hereinafter referred to as producers), distributors, users, and
consumers; and
(3) Simplification of the purchase, installation, and use of the
product being standardized.
(b) Requirements for Department of Commerce sponsorship. The
Department may sponsor the development of a voluntary Product Standard
if, upon receipt of a request, the Department determines that:
(1) The proposed standard is likely to have substantial public
impact;
(2) The proposed standard reflects the broad interest of an industry
group or an organization concerned with the manufacture, production,
packaging, distribution, testing, consumption, or use of the product, or
the interest of a Federal or State agency;
(3) The proposed standard would not duplicate a standard published
by, or actively being developed or revised by, a private
standards-writing organization to such an extent that it would contain
similar requirements and test methods for identical types of products,
unless such duplication was deemed by the Department to be in the public
interest;
(4) Lack of government sponsorship would result in significant public
disadvantage for legal reasons or reasons of domestic and international
trade;
(5) The proposed standard is not appropriate for development and
maintenance by a private standards-writing organization; and
(6) The proposed standard will be funded by a proponent organization
or government agency to cover costs for administrative and technical
support services provided by the Department.
(c) Role of the Department. The Department assists in the
establishment of a Voluntary Product Standard as follows:
(1) Acts as an unbiased coordinator in the development of the
standard;
(2) Provides editorial assistance in the preparation of the standard;
(3) Supplies such assistance and review as is required to assure the
technical soundness of the standard;
(4) Seeks satisfactory adjustment of valid points of disagreement;
(5) Determines the compliance with the criteria established in these
procedures for such voluntary standards;
(6) Provides secretarial functions for each committee appointed by
the Department under these procedures;
(7) Publishes the standard as a public document;
(8) Administers the funds for administrative and technical support
services; and
(9) Seeks listing for standards developed under these procedures as
American National Standards through the American National Standards
Institute, when deemed appropriate by the Department.
(d) Role of producers, distributors, users, and consumers.
Producers, distributors, users, consumers, and other interested groups
may contribute to the development of a Voluntary Product Standard as
follows:
(1) Initiate and participate in the development of the standard;
(2) Provide technical or other relevant counsel, as appropriate,
relating to the standard;
(3) Promote the use of, and support for, the standard; and
(4) Assist in keeping the standard current with respect to advancing
technology and marketing practices.
(e) Role of the National Institute of Standards & Technology. The
National Institute of Standards & Technology (NIST) administers these
procedures for the Department. Any communications concerning these
procedures (e.g., questions, clarifications, appeals) should be
addressed to the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.1 Initiating development of a new standard.
(a) Any group or association of producers, distributors, users, or
consumers, or a testing laboratory, or a State or Federal agency, may
request the Department to initiate the development and publication of a
Voluntary Product Standard under these procedures. Requests shall be in
writing, signed by a representative of the group or agency, and
forwarded to the Department. The initial request may be accompanied by
a copy of a draft of the suggested standard.
(b) The request shall include a commitment to provide sufficient
funding to cover all costs associated with the development and
maintenance of the proposed Voluntary Product Standard.
(c) The Department may require additional information such as
technical, marketing, or other appropriate data essential to discussion
and development of the proposed standard, including, but not limited to,
physical, mechanical, chemical, or performance characteristics, and
production figures.
(d) Upon receipt of an appropriate request and after a determination
by the Department that the development of a Voluntary Product Standard
is justified, the Department may initiate the development by requesting
that a draft of the suggested standard be prepared by an appropriate
committee, provided such a draft has not previously been submitted under
paragraph (a) of this section.
(e) The Department may initiate the development of a Voluntary
Product Standard, if such action is deemed by the Department to be in
the public interest, notwithstanding the absence of a request from an
outside source. A voluntary standard initiated by the Department shall
be processed in accordance with all requirements of these procedures and
shall be developed in the same manner as a voluntary standard initiated
by any group referred to in paragraph (a) of this section.
(f) An agreement regarding funding procedures and receipt of a
deposit estimated by the Department to be sufficient to cover the first
year's costs shall occur prior to the initiation of any project.
15 CFR 10.2 Funding.
Groups who represent producers, distributors, consumers or users, or
others that wish to act or continue to act as proponent organizations
for the development or maintenance of a Voluntary Product Standard will
be required to pay for administrative and technical support services
provided by the National Institute of Standards & Technology and such
other direct or indirect costs associated with the development or
maintenance of that standard as may be deemed appropriate by the
Department, including costs to the Department in connection with the
operation of the Standard Review Committee and the Standing Committee.
Funds may also be provided by a government agency at the request of a
proponent organization or when acting on its own behalf for the
development or maintenance of a Voluntary Product Standard. Proponents
of standards that meet sponsorship criteria established in these
procedures shall furnish an initial deposit of funds sufficient to cover
the first year's services and other costs. Estimated annual costs will
be based on an hourly rate for salary and overhead established by the
Department for the National Institute of Standards & Technology's
administrative and technical support services plus estimates of direct
costs to provide funds for such items as the travel of consumer
representatives unable to otherwise attend committee meetings, travel
for Department staff, and printing costs. Project funds will be
reviewed annually. Excess funds may be refunded or applied to the next
accounting period. Should funds from deposits be inadequate during an
accounting period, work on the project will continue only if funds are
restored to a level estimated adequate to complete the 12-month period.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.3 Development of a proposed standard.
(a) A proposed standard as submitted to the Department:
(1) Shall be based on adequate technical information, or, in the case
of size standards (including standards covering the quantities for
packaged consumer commodities), on adequate marketing information, or
both, as determined to be appropriate by the Department;
(2) Shall not be contrary to the public interest;
(3) Shall be technically appropriate and such that conformance or
nonconformance with the standard can be determined either during or
after the manufacturing process by inspection or other procedures which
may be utilized by either an individual or a testing facility competent
in the particular field;
(4) Shall follow the format prescribed by the National Institute of
Standards & Technology. (Copies of the recommended format may be
obtained from the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.);
(5) Shall include performance requirements if such are deemed by the
Department to be technically sound, feasible, and practical, and the
inclusion of such is deemed to be appropriate;
(6) May include dimensions, sizes, material specifications, product
requirements, design stipulations, component requirements, test methods,
testing equipment descriptions, and installation procedures. The
appropriateness of the inclusion in a standard of any particular item
listed in this subparagraph shall be determined by the Department; and
(7) Shall be accompanied by rational statements pertaining to the
requirements and test methods contained in the standard, if deemed
necessary by the Department.
(b) A proposed standard that is determined by the Department to meet
the criteria set forth in paragraph (a) of this section may be subjected
to further review by an appropriate individual, committee, organization,
or agency (either government or nongovernment, but not associated with
the proponent group).
(c) A proposed standard may be circulated by the Department to
appropriate producers, distributors, users, consumers, and other
interested groups for consideration and comment as well as to others
requesting the opportunity to comment.
(d) The proponent group or appropriate committee which drafted the
initial proposal under 10.1(d) shall consider all comments and
suggestions submitted by the reviewer designated under paragraph (b) of
this section, and those received by the Department as a result of any
circulation under paragraph (c) of this section, and may make such
adjustments in the proposal as are technically sound and as are believed
to cause the standard to be generally acceptable to producers,
distributors, users, consumers, and other interested parties. The
proposal will then be submitted to the Department for further
processing.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.4 Establishment of the Standard Review Committee.
(a) The Department shall establish and appoint the members of a
Standard Review Committee within a reasonable time after receiving a
proposed standard. The committee shall consist of qualified
representatives of producers, distributors, and users or consumers of
product for which a standard is sought or any other appropriate general
interest groups such as State and Federal agencies. When requested by
the Standard Review Committee, the Department shall appoint one voting
member from among the representatives of the Federal agencies, other
than the Department of Commerce. All other representatives of Federal
agencies on the Standard Review Committees shall be advisory nonvoting
members. (Alternates to committee members may be designated by the
Department.) When deemed appropriate by the Department, project funds
under 10.2 may be made available to assure participation by consumer
interests on the committee at required meetings.
(b) A Standard Review Committee may remain in existence for a period
necessary for the final development of the standard, or for 2 years,
whichever is less.
(c) The Department shall be responsible for the organization of the
committee. Any formal operating procedures developed by the committee
shall be subject to approval by the Department. The committee may
conduct business either in a meeting or through correspondence, but only
if a quorum participates. A quorum shall consist of two-thirds of all
voting members of the committee. A majority of the voting members of
the committee participating shall be required to approve any actions
taken by the committee except for the action of recommending a standard
to the Department, the requirements for which are contained in 10.5(b).
15 CFR 10.5 Development of a recommended standard.
(a) The Standard Review Committee, with the guidance and assistance
of the Department and, if appropriate, the reviewer designated under
10.3(b), shall review a proposed standard promptly. If the committee
finds that the proposal meets the requirements set forth in 10.3(a), it
may recommend to the Department that the proposal be circulated for
acceptance under 10.6. If, however, the committee finds that the
proposal being reviewed does not meet the requirements set forth in
10.3(a), the committee shall change the proposal, after consulting with
the proponent group, so that these requirements are met, before
recommending such proposal to the Department.
(b) The recommendation of a standard by the Standard Review Committee
shall be approved by at least three-quarters, or rejected by more than
one-quarter, of all of the members of the committee eligible to vote.
The voting on the recommendation of a standard shall be conducted by the
Department if conducted by letter ballot. If such voting is
accomplished at a meeting of the committee, the balloting shall be
either by roll call or by signed written ballot conducted by the
Department or the chairman of this committee. If conducted by the
chairman, a report of the vote shall be made to the Department within 15
days. If the balloting at the meeting does not result in either
approval by at least three-quarters of all members (or alternates)
eligible to vote (whether present or not), or rejection by more than
one-quarter of the members (or alternates) or the committee eligible to
vote, the balloting shall be disregarded and the Department shall
subsequently conduct a letter ballot of all members of the committee.
(c) Any member of the committee casting a negative ballot shall have
the right to support an objection by furnishing the chairman of the
committee and the Department with a written statement setting forth the
basis for the objection. The written statement of objection shall be
filed within 15 days after the date of the meeting during which the
voting on the standard was accomplished, or, in the case of a letter
ballot, within the time limit established for the return of the ballot.
(d) At the time a recommended standard is submitted to the
Department, the Chairman of the Standard Review Committee shall furnish
a written report in support of the committee's recommendation. Such
report shall include a statement with respect to compliance with the
requirements as established by these procedures, a discussion of the
manner in which any objections were resolved, and a discussion of any
unresolved objections together with the committee's reasons for
rejecting such unresolved objections.
15 CFR 10.6 Procedures for acceptance of a recommended standard.
(a) Upon receipt from the Standard Review Committee of a recommended
standard and report, the Department shall give appropriate public notice
and distribute the recommended standard for acceptance unless:
(1) Upon a showing by any member of the committee who has voted to
oppose the recommended standard on the basis of an unresolved objection,
the Department determines that if such objection were not resolved, the
recommended standard:
(i) Would be contrary to the public interest, if published;
(ii) Would be technically inadequate; or
(iii) Would be inconsistent with law or established public policy;
or
(2) The Department determines that all criteria and procedures set
forth herein have not been met satisfactorily or that there is a legal
impediment to the recommended standard.
(b) Distribution for acceptance or rejection for the purpose of
determining general concurrence will be made to a list compiled by the
Department, which, in the judgment of the Department, shall be
representative of producers, distributors, and users and consumers.
(c) Distribution for comment will be made to any party filing a
written request with the Department, and to such other parties as the
Department may deem appropriate, including testing laboratories and
interested State and Federal agencies.
(d) The Department shall analyze the recommended standard and the
responses received under paragraphs (b) and (c) of this section. If
such analysis indicates that the recommended standard is supported by a
consensus, it shall be published as a Voluntary Product Standard by the
Department: Provided, That all other requirements listed in these
procedures have been satisfied.
(e) The following definitions shall apply to the term used in this
section:
(1) ''Consensus'' means general concurrence and, in addition, no
substantive objection deemed valid by the Department.
(2) ''General concurrence'' means acceptance among those responding
to the distribution made under paragraph (b) of this section in
accordance with the conditions set forth in paragraph (f) of this
section.
(3) ''Substantive objection'' means a documented objection based on
grounds that one or more of the criteria set forth in these procedures
has not been satisfied.
(4) ''Average industry acceptance'' means a percentage equal to the
sum of the percentages of acceptance obtained from responses to
distribution of the recommended standard in the producer segment, the
distributor segment, and the user and consumer segment, divided by
three. No consideration will be given to volume of production or volume
of distribution in determining average industry acceptance.
(5) ''Producer segment'' means those persons who manufacture or
produce the product covered by the standard.
(6) ''Distributor segment'' means those persons who distribute at
wholesale or retail the product covered by the standard.
(7) ''User and consumer segment'' means those persons who use or
consume the product covered by the standard.
(8) ''Acceptance by volume of production'' means the weighted
percentage of acceptance of those responding to the distribution in the
producer segment. The weighting of each response will be made in
accordance with the volume of production represented by each respondent.
(9) ''Acceptance by volume of distribution'' means the weighted
percentage of acceptance of those responding to the distribution in the
distributor segment. The weighting of each response will be made in
accordance with the volume of distribution represented by each
respondent.
(f) A recommended standard shall be deemed to be supported by general
concurrence whenever:
(1) An analysis of the responses to the distribution under paragraph
(b) of this section indicates:
(i) An average industry acceptance of not less than 75 percent;
(ii) Acceptance of not less than 70 percent by the producer segment,
the distributor segment, and the user and consumer segment, each segment
being considered separately; and
(iii) Acceptance by volume of production and acceptance by volume of
distribution of not less than 70 percent in each case: Provided, That
the Department shall disregard acceptance by volume of production or
acceptance by volume of distribution or both unless, in the judgment of
the Department, accurate figures for the volume of production or
distribution are reasonably available and an evaluation of either or
both of such acceptances is deemed necessary by the Department; or
(2) The Department determines that publication of the standard is
appropriate under the procedures set forth in paragraph (g) of this
section and, in addition, an analysis of the responses to the
distribution under paragraph (b) of this section indicates:
(i) An average industry acceptance of not less than 66 2/3 percent;
(ii) Acceptance of not less than 60 percent by the producer segment,
the distributor segment, and the user and consumer segment, each segment
being considered separately; and
(iii) Acceptance by volume of production and acceptance by volume of
distribution of not less than 60 percent in each case: Provided, That
the Department shall disregard acceptance by volume of production or
acceptance by volume of distribution or both unless, in the judgment of
the Department. Accurate figures for the volume of production or
distribution are reasonably available and an evaluation of either or
both of such acceptances is deemed necessary by the Department.
(g) A recommended standard which fails to achieve the acceptance
requirements of paragraph (f)(1) of this section, but which satisfies
the acceptance criteria of paragraph (f)(2) of this section, shall be
returned to the Standard Review Committee for reconsideration. The
committee, by the affirmative vote of not less than three-quarters of
all members eligible to vote, may resubmit the recommended standard
without change to the Department with a recommendation that the standard
be published as a Voluntary Product Standard. The Department shall then
conduct a public rulemaking hearing in accordance with the requirements
of law as set forth in section 553 of Title 5, United States Code, to
assist it in determining whether publication of the standard is in the
public interest. If the Department determines that publication of the
standard is in the public interest, the standard shall be published as a
Voluntary Product Standard.
15 CFR 10.7 Procedure when a recommended standard is not supported by a
consensus.
If the Department determines that a recommended standard is not
supported by a consensus, the Department may:
(a) Return the recommended standard to the Standard Review Committee
for further action, with or without suggestions;
(b) Terminate the development of the recommended standard under these
procedures; or
(c) Take such other action as it may deem necessary or appropriate
under the circumstances.
15 CFR 10.8 Standing Committee.
(a) The Department shall establish and appoint the members of a
Standing Committee prior to the publication of a standard. The
committee may include members from the Standard Review Committee, and
shall consist of qualified representatives of producers, distributors,
and users or consumers of the product covered by the standard, and
representatives of appropriate general interest groups such as
municipal, State, and Federal agencies. When requested by the Standing
Committee, the Department shall appoint one voting member from among the
representatives of the Federal agencies, other than the Department of
Commerce. When requested by the Standing Committee for PS 20-70,
''American Softwood Lumber Standard,'' the Department shall appoint two
voting members from among the representatives of the Federal agencies,
other than the Department of Commerce. All other representatives of
Federal agencies shall be advisory nonvoting members of Standing
Committees. (Alternates to committee members may be designated by the
Department.) When deemed appropriate by the Department, project funds
under 10.2, may be made available to assure participation by consumer
interests on the committee at required meetings.
(b) Appointments to a Standing Committee may not exceed a term of 5
years. However, the committee may be reconstituted by the Department
whenever appropriate, and members may be reappointed by the Department
to succeeding terms. Appointments to the committee will be terminated
upon the withdrawal of the standard.
(c) The Department shall be responsible for the organization of the
committee. Any formal operating procedures developed by the committee
shall be subject to approval by the Department. The committee may
conduct business either in a meeting or through correspondence, but only
if a quorum participates. A quorum shall consist of two-thirds of all
voting members of the committee. A majority of the voting members of
the committee participating shall be required to approve any actions
taken by the committee except for the approval of revisions of the
standard which shall be governed by the provisions of 10.5 (b), (c),
and (d),
(d) The members of a Standing Committee should be knowledgeable
about:
(1) The product or products covered by the standard;
(2) The standard itself; and
(3) Industry and trade practices relating to the standard.
(e) The committee shall:
(1) Keep itself informed of any advancing technology that might
affect the standard;
(2) Provide the Department with interpretations of provisions of the
standard upon request;
(3) Make recommendations to the Department concerning the
desirability or necessity of revising or amending the standard;
(4) Receive and consider proposals to revise or amend the standard;
and
(5) Recommend to the Department the revision or amendment of a
standard.
15 CFR 10.9 Publication of a standard.
A Voluntary Product Standard published by the department under these
procedures shall be assigned an appropriate number for purposes of
identification and reference. Public notice shall be given regarding
the publication and identification of the standard. A voluntary
standard by itself has no mandatory or legally binding effect. Any
person may choose to use or not to use such a standard. Appropriate
reference in contracts, codes, advertising, invoices, announcements,
product labels, and the like may be made to a Voluntary Product Standard
published under these procedures. Such reference shall be in accordance
with such policies as the Department may establish, but no product may
be advertised or represented in any manner which would imply or tend to
imply approval or endorsement of that product by the Department or by
the Federal Government.
15 CFR 10.10 Review of published standards.
(a) Each standard published under these or previous procedures shall
be reviewed regularly to determine the feasibility of transferring
sponsorship to a private standards-writing organization. While the
Department encourages the development of standards to replace Voluntary
Product Standards by private standards-writing organizations, withdrawal
of a Voluntary Product Standard, which meets the requirements of
10.0(b), shall not be considered until a replacement standard is
published.
(b) Each standard published under these or previous procedures shall
be reviewed by the Department, with such assistance of the Standing
Committee or others as may be deemed appropriate by the Department,
within 5 years after initial issuance or last revision and at least
every 5 years thereafter. The purpose of this review shall be to
determine whether the standard has become obsolete, technically
inadequate, no longer acceptable to or used by the industry, or
inconsistent with law or established public policy.
(c) If any of the above conditions is found to exist, the Department
shall initiate action to amend, revise, or withdraw the standard in
accordance with 10.11 or 10.13. If none is found to exist, the
standard shall be kept in effect provided adequate funding is
maintained.
15 CFR 10.11 Revision or amendment of a standard.
(a) A published standard shall be subject to revision or amendment
when it is determined to be inadequate by its Standing Committee or by
the Department of one or more of the following reasons or for any other
appropriate reasons:
(1) Any portion of the standard is obsolete, technically inadequate,
or no longer generally acceptable to or used by the industry;
(2) The standard or any part of it is inconsistent with law or
established public policy; or
(3) The standard or any part of it is being used to mislead users or
consumers or is determined to be against the interest of users,
consumers, or the public in general.
(b) A revision of a standard shall be considered by the Department to
include changes which are comprehensive in nature, which have a
substantive effect on the standards, which change the level of
performance or safety or the design characteristics of the product being
standardized, or which cannot reasonably be injected into a standard
without disturbing the general applicability of the standard. Each
suggestion for revision shall be submitted by the Department to the
Standing Committee for appropriate consideration. The Standing
Committee shall serve the same functions in the revision of a standard
as the Standard Review Committee serves in the development of a new
standard. The processing of a revision of a standard shall be dependent
upon the age of the standard as computed from its effective date and
shall be accomplished as follows:
(1) A proposed revision of a standard older than 5 years at the time
such proposed revision is submitted to the Standing Committee by the
Department shall be processed as a new standard under these procedures
and, when approved for publication, the standard shall be republished
and reidentified to indicate the year in which the revision became
effective. The revised standard shall supersede the previously
published standard.
(2) A proposed revision of a standard less than 5 years at the time
such proposed revision is submitted to the Standing Committee by the
Department shall be processed as a new standard except that:
(i) Distribution for acceptance or rejection shall be made to an
appropriate list of producers, distributors, and users and consumers
compiled by the Department;
(ii) If the revision affects only one subsection of the requirement
section and/or only one subsection of the test methods section, it may
be circulated separately for determining consensus and subsequently
published as an addendum to the standard with appropriate dissemination
and public notice of the addendum; and
(iii) If the revision does not change the level of performance or
safety or the design characteristics of the product being standardized,
the standard need not be reidentified.
(c) An amendment to a standard shall be considered by the Department
to be any non-editorial change which is not comprehensive in nature,
which has no substantive effect on the standard, which does not change
the level of performance or safety or the design characteristics of the
product being standardized, and which reasonably can be injected into a
standard without disturbing the general applicability of the standard.
Each suggestion for amendment shall be submitted by the Department to
the Standing Committee for appropriate consideration. An amendment to a
standard recommended by not less than 90 percent of the members of the
committee eligible to vote and found acceptable by the Department, shall
be published as an addendum (until the standard is republished) and
distributed to acceptors of record. Public notice of the amendment
shall be given and copies of the amendment shall be distributed to those
filing written requests.
15 CFR 10.12 Editorial changes.
The Department may, without prior notice, make such editorial or
other minor changes as it deems necessary to reduce ambiguity or to
improve clarity in any proposed, recommended, or published standard, or
revision or amendment thereof.
15 CFR 10.13 Withdrawal of a published standard.
(a) Standards published under these and previous procedures may be
withdrawn by the Director of the National Institute of Standards &
Technology at any time. Such action will be taken if, after
consultation with the Standing Committee as provided in paragraph (a)(1)
of this section and after public notice, the Director determines that
the standard is: Obsolete; technically inadequate; no longer
generally acceptable to and used by the industry; inconsistent with law
or established public policy; not in the public interest; or otherwise
inappropriate; and revision or amendment is not feasible or would serve
no useful purpose. Additionally, a standard may be withdrawn if it
cannot be demonstrated that a particular standard has substantial public
impact, that it does not duplicate a standard published by a private
standards-writing organization, or that lack of government sponsorship
would result in significant public disadvantage for legal reasons or for
reasons of domestic and international trade. The Director may withdraw
a standard if costs to maintain such a standard are not reimbursed by
the proponent or other government agencies.
(1) Before withdrawing a standard published under these procedures,
the Director will review the relative advantages and disadvantages of
amendment, revision, development of a new standard, or withdrawal with
the members of the Standing Committee, if such committee was appointed
or reappointed within the previous five years.
(2) Public notice of intent to withdraw an existing standard
published under these procedures shall be given and a 30-day period will
be provided for the filing with the Director or written objections to
the withdrawal. Such objections will be considered and analyzed by the
Director before a determination is made to withdraw the standard. If
the Director determines that a particular standard does not meet the
criteria set out in 10.0(b), the standard will be withdrawn.
(b) The filing under paragraph (a) of this section of a request to
retain a standard or standards shall operate to stay the withdrawal of
such standard or standards until the Director's determination has been
made. If the Director determines that the requested standard or
standards shall be withdrawn, the stay will remain in effect, if an
appeal is filed in accordance with the requirements of 10.14, until the
decision of the Director is announced in the Federal Register. If,
however, no appeal is received, the Director shall announce withdrawal
of the particular standard or standards.
(c) Notice of the withdrawal action will be published in the Federal
Register and such withdrawal will take effect 60 days from the date the
withdrawal notice is published.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.14 Appeals.
(a) Any person directly affected by a procedural action taken by NIST
or the Standard Review Committee under 10.5, 10.6 or 10.7 regarding
the development of a standard, by NIST or the Standing Committee under
10.10 regarding the review of a published standard, or under 10.11
regarding the revision of a standard, or under 10.13 regarding the
withdrawal of a standard, may appeal such action.
(b) Such appeal shall be filed in written form with the body taking
the action complained of (NIST, the Standard Review Committee, or the
Standing Committee) within 30 days after the date of announcement of the
action.
(c) If appeal is filed with the Standard Review Committee or the
Standing Committee, the Committee shall attempt to resolve the appeal
informally. If the appeal is filed with NIST, NIST with the
consultation and advice of the Standard Review Committee or the Standing
Committee, whichever is appropriate, shall attempt to resolve the appeal
informally.
(d) If the appeal is to the Standard Review Committee or the Standing
Committee and the Committee is unable to resolve such an appeal
informally, the Committee shall hold a hearing regarding the appeal.
Announcement of the hearing shall be made to members of the Standard
Review Committee or the Standing Committee and all the acceptors of
record, when appropriate, as well as other known interests. Notice of
the hearing shall be published in the Federal Register. The hearing
will be an informal, nonadversary proceeding at which there will be no
formal pleadings or adverse parties. Written statements will be
furnished by witnesses prior to the hearing. A record of the hearing
will be made. Copies of the written statements and the record of the
hearing will be available at cost.
(e) Those members of the Committee hearing the appeal will develop a
recommendation to the Committee concerning the resolution of the appeal.
NIST will review the recommendation and if found acceptable will
subject it to a letter ballot of the Committee. Approval by
three-fourths of the members of the Committee eligible to vote will
constitute acceptance by the Committee and by NIST. Notice of the
Committee decision will be published in the Federal Register.
(f) If the appeal is to NIST and the attempt to resolve the appeal
informally under paragraph (c) of this section is not successful, the
Deputy Director of NIST will schedule a hearing with an appeals panel at
an appropriate location. Announcement of the hearing shall be made to
members of the Standard Review Committee or Standing Committee and all
acceptors of record, when appropriate, as well as to other known
interests. Notice of the hearing shall be published in the Federal
Register.
(g) The Deputy Director of NIST will name two other persons, who have
not been directly involved in the matter in dispute and who will not be
directly or materially affected by any decision made or to be made in
the dispute, to sit on the panel with the Deputy Director, who will act
as presiding officer. The presiding officer will have the right to
exercise such authority as necessary to ensure the equitable and
efficient conduct of the hearing and to maintain an orderly proceeding.
(h) The hearing will be an informal, nonadversary proceeding at which
there will be no formal pleadings or adverse parties. The hearing will
be open to the public. Witnesses shall submit a written presentation
for the record seven days prior to the hearing. A record will be made
of the hearing. Copies of the written statements and the record of the
hearing will be available at cost.
(i) The appeals panel will make a recommendation to the Director of
NIST. The Director's decision on the appeal will be announced within 60
days following the hearing and will be communicated to the complainant
and other interested parties by letter. Notice of the Director's
decision shall be published in the Federal Register.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.15 Interpretations.
(a) An interpretation of a Voluntary Product Standard may be obtained
through the submission of a written request. The request shall identify
the specific section of the standard involved.
(b) In the case of PS 20-70, the ''American Softwood Lumber
Standard,'' interpretations shall be made by the American Lumber
Standards Committee (ALSC) under the procedures developed by the ALSC
and found acceptable to NIST.
(c) In the case of the other Voluntary Product Standards,
interpretations shall be made by the appropriate Standing Committees
under procedures developed by those committees and found acceptable to
NIST.
(51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 10.16 Effect of procedures.
Nothing contained in these procedures shall be deemed to apply to the
development, publication, revision, amendment, or withdrawal of any
standard which is not identified as a ''Voluntary Product Standard'' by
the Department. The authority of the Department with respect to
engineering standards activities generally, including the authority to
publish appropriate recommendations not identified as ''Voluntary
Product Standards,'' is not limited in any way by these procedures.
15 CFR 10.16 PART 11 -- UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY
ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
Authority: Section 213, Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat.
1894 (42 U.S.C. 4601) as amended by the Surface Transportation and
Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17,
101 Stat. 246-256 (42 U.S.C. 4601 note).
Editorial Note: For additional information, see related documents
published at 50 FR 8953, Mar. 5, 1985, 52 FR 18768, May 19, 1987, and
52 FR 45667, Dec. 1, 1987.
15 CFR 11.1 Uniform relocation and real property acquisition.
Regulations and procedures for complying with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L.
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth
in 49 CFR Part 24.
(52 FR 48018, Dec. 17, 1987 and 54 FR 8912, 8913, Mar. 2, 1989)
15 CFR 11.1 Pt. 12
15 CFR 11.1 PART 12 -- FAIR PACKAGING AND LABELING
Sec.
12.1 Introduction.
12.2 Undue proliferation.
12.3 Development of voluntary product standards.
12.4 Report to the Congress.
Authority: Secs. 5(d), 5(e), 80 Stat. 1298, 15 U.S.C. 1454; sec.
3, Dept. Order 177 (31 FR 6746), as amended (32 FR 3110).
Source: 32 FR 11074, July 29, 1967, unless otherwise noted.
15 CFR 12.1 Introduction.
(a) These procedures apply to the discharge of the responsibility
given to the Secretary of Commerce by sections 5(d) and 5(e) of the Fair
Packaging and Labeling Act (Pub. L. 89-755, 80 Stat. 1299), hereinafter
called the ''Act''. The word ''Secretary'', as used hereinafter, shall
refer to the Secretary of Commerce or his authorized delegate.
(b) The Secretary does not have the responsibility or the authority
under the Act to issue any regulations governing the packaging or
labeling practices of private industry.
(c) The Secretary does have the responsibility and authority to:
(1) Determine whether the reasonable ability of consumers to make
value comparisions with respect to any consumer commodity or reasonably
comparable consumer commodities is impaired by undue proliferation of
the weights, measures, or quantities in which such commodity or
commodities are being distributed in packages for sale at retail.
(2) Request manufacturers, packers, and distributors, where a
determination of undue proliferation has been made, to participate in
the development of a voluntary product standard under the procedures
governing the Department's voluntary standards program.
(3) Report to Congress with a recommendation as to whether
legislation providing regulatory authority should be enacted, when after
1 year following the date private industry has been requested to
participate in the development of a voluntary product standard it is
determined that such a standard will not be published, or when following
the publication of such a standard it is determined that the standard
has not been observed.
(d) The Act does not furnish a detailed, definitive explanation of
''undue proliferation''. It does, however, point out that the condition
of ''undue proliferation'' must be one which ''impairs the reasonable
ability of consumers to make value comparisons'' with respect to
consumer commodities. Generally, therefore, the Department will
determine ''undue proliferation'' on a case-by-case basis, and,
accordingly, is establishing by these procedures an orderly process for
such determinations.
(e) As used hereinafter the term ''undue proliferation'' shall refer
to such undue proliferation -- of the weights, measures or quantities in
which any consumer commodity or reasonably comparable consumer
commodities are being distributed for sale at retail -- as impairs the
reasonable ability of consumers to make value comparisons with respect
to such consumer commodity or commodities, as set out in section 5(d) of
the Act.
15 CFR 12.2 Undue proliferation.
(a) Information as to possible undue proliferation. Any person or
group, including a State or local governmental entity, is invited to
communicate information to the Secretary concerning the possible
existence of undue proliferation. Such communications should be in
writing and include supporting information and explanations.
(b) Initiation of inquiry as to undue proliferation. Upon receipt of
information regarding the possible existence of undue proliferation, the
Secretary will determine whether there has been a showing of good cause
warranting an inquiry. If the Secretary determines that good cause
exists, he shall initiate an inquiry for the purpose of finding facts
concerning the existence of undue proliferation.
(c) Procedures for inquiry -- (1) Cooperation with State and local
officials. Any inquiry initiated under paragraph (b) of this section
may be conducted in cooperation with State and local weights and
measures officials.
(2) Participation by interested persons. The Secretary may, during
the course of the inquiry, afford interested persons or groups an
opportunity to submit in writing comments, data, arguments, views, or
other information relevant to the inquiry.
(d) Proposed determination as to existence of undue proliferation.
(1) If, after consideration of all relevant information, the Secretary
concludes that undue proliferation appears to exist, he shall publish a
proposed determination to this effect. The proposed determination shall
identify the particular consumer commodity or commodities involved and
shall be accompanied by a concise statement of the facts upon which it
is based.
(2) Within 60 days after publication of the proposed determination,
any interested party may submit in writing comments, data, arguments,
views, or other information relevant to the proposed determination. All
written submissions shall be made a part of the public record.
(3) Within 30 days after the proposed determination has been
published, any interested party may request in writing an oral hearing
to present his views. The granting of such a hearing shall be at the
discretion of the Secretary. Any such hearing shall be public and
notice thereof shall be published at least 15 days in advance. A
transcript of the hearing shall be made part of the public record.
(e) Final determination as to undue proliferation. As soon as
practicable following the conclusion of the proceedings described in
paragraph (d) of this section, the Secretary shall either publish a
final determination of undue proliferation, or he shall publish a notice
withdrawing his proposed determination of undue proliferation. In no
event shall the withdrawal of a proposed determination operate to
preclude the initiation of another inquiry regarding the same or similar
subject matter under paragraph (b) of this section.
15 CFR 12.3 Development of voluntary product standards.
(a) Invitation to participate in the development of a voluntary
product standard. Whenever the Secretary publishes a final
determination of undue proliferation under 12.2(e), he shall invite
manufacturers, packers, and distributors of the commodity or commodities
involved to participate in the development of a voluntary product
standard in accordance with the terms of the Act and the Department's
published procedures for voluntary product standards. The term
''Voluntary Product Standard'' as used in this section means a standard
for weights, measures or quantities in which the commodity or
commodities are being distributed in packages for sale at retail.
(b) Determination that voluntary product standard will not be
published. (1) If a voluntary product standard has not been developed
within one year from the date on which participation was invited, the
Secretary may conclude that a voluntary product standard will not likely
be published. Upon reaching such a conclusion, the Secretary will
publish a proposed determination that a voluntary product standard will
not be published.
(2) Within 60 days after publication of the proposed determination,
any interested party may submit in writing comments, data, arguments,
views, or other information relevant to the proposed determination. All
written submissions shall be made a part of the public record.
(3) Within 30 days after the proposed determination has been
published, any interested party may request in writing an oral hearing
to present his views. The granting of such a hearing shall be at the
discretion of the Secretary. Any such hearing shall be public and
notice thereof shall be published at least 15 days in advance. A
transcript of the hearing shall be made part of the public record.
(4) As soon as practicable following the conclusion of the
proceedings described in paragraphs (b)(2) and (3) of this section, the
Secretary shall either publish a final determination that a voluntary
product standard will not be published, or he shall publish a notice
withdrawing his proposed determination under paragraph (b)(1) of this
section. In no event shall the withdrawal of a proposed determination
operate to preclude the publication of another proposed determination
under paragraph (b)(1) of this section with respect to the same or
similar subject matter.
(c) Determination that a published voluntary product standard has not
been observed. (1) Whenever the Secretary has reason to believe that a
voluntary product standard published under these procedures is not being
observed he shall initiate an inquiry to determine such fact.
(2) If, on the basis of the information developed during the inquiry,
the Secretary concludes that the voluntary product standard is not being
observed, he shall publish a proposed determination to this effect. The
proposed determination shall identify the particular standard involved
and shall be accompanied by a concise statement of the facts upon which
it is based.
(3) Within 60 days after publication of the proposed determination,
any interested party may submit in writing comments, data, arguments,
views, or other information relevant to the proposed determination. All
written submissions shall be made a part of the public record.
(4) Within 30 days after the proposed determination has been
published, any interested party may request in writing an oral hearing
to present his views. The granting of such a hearing shall be at the
discretion of the Secretary. Any such hearing shall be public and
notice thereof shall be published at least 15 days in advance. A
transcript of the hearing shall be made part of the public record.
(5) As soon as practicable following the conclusion of the
proceedings described in paragraphs (c)(3) and (4) of this section, and
upon consideration of all relevant information, the Secretary shall
either publish a final determination that the voluntary product standard
is not being observed, or he shall publish a notice withdrawing his
proposed determination under paragraph (c)(2) of this section. In no
event shall the withdrawal of a proposed determination operate to
preclude the initiation of another inquiry regarding the same standard
under paragraph (c)(1) of this section.
15 CFR 12.4 Report to the Congress.
Whenever the Secretary publishes a final determination under
12.3(b)(4) or 12.3(c)(5), he shall promptly report such determination
to the Congress with a statement of the efforts that have been made
under the voluntary standards program and his recommendation as to
whether Congress should enact legislation providing regulatory authority
to deal with the situation in question.
15 CFR 12.4 PART 13 -- INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF
COMMERCE PROGRAMS AND ACTIVITIES
Sec.
13.1 Purpose.
13.2 Definitions.
13.3 Programs and activities of the Department subject to the
regulations.
13.4 General responsibilities under the Order.
13.5 Obligations with respect to Federal interagency coordination.
13.6 State selection of programs and activities.
13.7 Communication with state and local officials concerning the
Department's programs and activities.
13.8 Opportunity to comment on proposed Federal financial assistance
and direct Federal development.
13.9 Receipt of and response to comments.
13.10 Accommodation of intergovernmental concerns.
13.11 Obligations in interstate situations.
Authority: Executive Order 12372, July 14, 1982, 47 FR 30959, as
amended April 8, 1983, 48 FR 15587, sec. 401, Intergovernmental
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204,
Demonstration Cities and Metropolitan Development Act of 1966 as amended
(42 U.S.C. 3334).
Source: 48 FR 29134, June 24, 1983, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 47 FR 57369, December 23, 1982, 48 FR 17101, April 21,
1983, and 48 FR 29096, June 24, 1983.
15 CFR 13.1 Purpose.
(a) The regulations in this part implement Executive Order 12372,
''Intergovernmental Review of Federal Programs,'' issued July 14, 1982
and amended on April 8, 1983. These regulations also implement
applicable provisions of 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.
15 CFR 13.2 Definitions.
''Department'' means the U.S. Department of Commerce.
''Order'' means Executive Order 12372, issued July 14, 1982, and
amended April 8, 1983 and titled ''Intergovernmental Review of Federal
Programs.''
''Secretary'' means the Secretary of the U.S. Department of Commerce
or an official or employee of the Department acting for the Secretary
under a delegation of authority.
''State'' means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
15 CFR 13.3 Programs and activities of the Department subject to the
regulations.
The Secretary publishes in the Federal Register a list of the
Department's programs and activities that are subject to these
regulations and identifies which of these are subject to the
requirements of section 204 of the Demonstration Cities and Metropolitan
Development Act.
15 CFR 13.4 General responsibilities under the Order.
(a) The Secretary provides opportunities for consultation by elected
officials of those state and local governments that would provide the
non-Federal funds for, or that would be directly affected by, proposed
Federal financial assistance from, or direct Federal development by, the
Department.
(b) If a state adopts a process under the Order to review and
coordinate proposed Federal financial assistance and direct Federal
development, the Secretary, to the extent permitted by law:
(1) Uses the state process to determine official views of state and
local elected officials;
(2) Communicates with state and local elected officials as early in a
program planning cycle as is reasonably feasible to explain specific
plans and actions;
(3) Makes efforts to accommodate state and local elected officials'
concerns with proposed Federal financial assistance and direct Federal
development that are communicated through the state process;
(4) Allows the states to simplify and consolidate existing federally
required state plan submissions;
(5) Where state planning and budgeting systems are sufficient and
where permitted by law, encourages the substitution of state plans for
federally required state plans;
(6) Seeks the coordination of views of affected state and local
elected officials in one state with those of another state when proposed
Federal financial assistance or direct Federal development has an impact
on interstate metropolitan urban centers or other interstate areas; and
(7) Supports state and local governments by discouraging the
reauthorization or creation of any planning organization which is
federally-funded, which has a limited purpose, and which is not
adequately representative of, or accountable to, state or local elected
officials.
15 CFR 13.5 Obligations with respect to Federal interagency
coordination.
The Secretary, to the extent practicable, consults with and seeks
advice from all other substantially affected Federal departments and
agencies in an effort to assure full coordination between such agencies
and the Department regarding programs and activities covered under these
regulations.
15 CFR 13.6 State selection of programs and activities.
(a) A state may select any program or activity published in the
Federal Register in accordance with 13.3 of this part for
intergovernmental review under these regulations. Each state, before
selecting programs and activities, shall consult with local elected
officials.
(b) Each state that adopts a process shall notify the Secretary of
the Department's programs and activities selected for that process.
(c) A state may notify the Secretary of changes in its selections at
any time. For each change, the state shall submit to the Secretary an
assurance that the state has consulted with elected local elected
officials regarding the change. The Department may establish deadlines
by which states are required to inform the Secretary of changes in their
program selections.
(d) The Secretary uses a state's process as soon as feasible,
depending on individual programs and activities, after the Secretary is
notified of its selections.
15 CFR 13.7 Communication with state and local officials concerning the
Department's programs and activities.
(a) For those programs and activities covered by a state process
under 13.6, the Secretary, to the extent permitted by law:
(1) Uses the state process to determine views of state and local
elected officials; and,
(2) Communicates with state and local elected officials, through the
state process, as early in a program planning cycle as is reasonably
feasible to explain specific plans and actions.
(b) The Secretary provides notice to directly affected state,
areawide, regional, and local entities in a state of proposed Federal
financial assistance or direct Federal development if:
(1) The state has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not
selected for the state process. This notice may be made by publication
in the Federal Register or other appropriate means, which the Department
in its discretion deems appropriate.
15 CFR 13.8 Opportunity to comment on proposed Federal financial
assistance and direct Federal development.
(a) Except in unusual circumstances, the Secretary gives state
processes or directly affected state, areawide, regional and local
officials and entities at least:
(1) 30 days from the date established by the Secretary to comment on
proposed Federal financial assistance in the form of noncompeting
continuation awards; and
(2) 60 days from the date established by the Secretary to comment on
proposed direct Federal development or Federal financial assistance
other than noncompeting continuation awards.
(b) This section also applies to comments in cases in which the
review, coordination, and communication with the Department have been
delegated.
(c) Applicants for programs and activities subject to section 204 of
the Demonstration Cities and Metropolitan Act shall allow areawide
agencies a 60-day opportunity for review and comment.
15 CFR 13.9 Receipt of and response to comments.
(a) The Secretary follows the procedures in 13.10 if:
(1) A state office or official is designated to act as a single point
of contact between a state process and all Federal agencies; and
(2) That office or official transmits a state process recommendation
for a program selected under 13.6.
(b)(1) The single point of contact is not obligated to transmit
comments from state, areawide, regional or local officials and entities
where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a state has not established a process, or is unable to submit
a state process recommendation, state, areawide, regional and local
officials and entities may submit comments either to the applicant or to
the Department.
(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 13.10 of this part.
(e) The Secretary considers comments which do not constitute a state
process recommendation submitted under these regulations and for which
the Secretary is not required to apply the procedures of 13.10 of this
part, when such comments are provided by a single point of contact, by
the applicant, or directly to the Department by a commenting party.
15 CFR 13.10 Accommodation of intergovernmental concerns.
(a) If a state process provides a state process recommendation to the
Department through its single point of contact, the Secretary either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with a written explanation
of the decision in such form as the Secretary in his or her discretion
deems appropriate. The Secretary may also supplement the written
explanation by providing the explanation to the single point of contact
by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Secretary informs the single point of contact that:
(1) The Department will not implement its decision for at least ten
days after the single point of contact receives the explanation; or
(2) The Secretary has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing of such
notification.
15 CFR 13.11 Obligations in interstate situations.
(a) The Secretary is responsible for:
(1) Identifying proposed Federal financial assistance and direct
Federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in states which have
adopted a process and which select the Department's program or activity.
(3) Making efforts to identify and notify the affected state,
areawide, regional, and local officials and entities in those states
that have not adopted a process under the Order or do not select the
Department's program or activity;
(4) Responding pursuant to 13.10 of this part if the Secretary
receives a recommendation from a designated areawide agency transmitted
by a single point of contact, in cases in which the review,
coordination, and communication with the Department have been delegated.
(b) The Secretary uses the procedures in 13.10 if a state process
provides a state process recommendation to the Department through a
single point of contact.
15 CFR 13.11 PART 14 -- (RESERVED)
15 CFR 13.11 PART 15 -- SERVICE OF PROCESS
Sec.
15.1 Scope and purpose.
15.2 Definitions.
15.3 Acceptance of service of process.
Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515, and
1518; Reorganization Plan No. 5 of 1950; 44 U.S.C. 3101.
Source: 53 FR 41318, Oct. 21, 1988, unless otherwise noted.
15 CFR 15.1 Scope and purpose.
(a) This part sets forth the procedures to be followed when a summons
or complaint is served on the Department, a component, or the Secretary
or a Department employee in his or her official capacity.
(b) This part is intended to ensure the orderly execution of the
affairs of the Department and not to impede any legal proceeding.
(c) This part does not apply to subpoenas. The procedures to be
followed with respect to subpoenas are set out in Part 15a.
(d) This part does not apply to service of process made on a
Department employee personally on matters not related to official
business of the Department or to the official responsibilities of the
Department employee.
15 CFR 15.2 Definitions.
For the purpose of this part:
(a) General Counsel means the General Counsel of the United States
Department of Commerce or other Department employee to whom the General
Counsel has delegated authority to act under this part, or the chief
legal officer (or designee) of the Department of Commerce component
concerned.
(b) Component means Office of the Secretary or an operating unit of
the Department as defined in Department Organization Order 1-1.
(c) Department means the Department of Commerce.
(d) Department employee means any officer or employee of the
Department, including commissioned officers of the National Oceanic and
Atmospheric Administration.
(e) Legal proceeding means a proceeding before a tribunal constituted
by law, including a court, an administrative body or commission, or an
administrative law judge or hearing officer.
(f) Official business means the authorized business of the
Department.
(g) Secretary means Secretary of Commerce.
15 CFR 15.3 Acceptance of service of process.
(a) Except as otherwise provided in this part, any summons or
complaint to be served in person or by registered or certified mail or
as otherwise authorized by law on the Department, a component or the
Secretary or a Department employee in their official capacity, shall be
served on the General Counsel of the United States Department of
Commerce, Washington, DC 20230.
(b) Any summons or complaint to be served in person or by registered
or certified mail or as otherwise authorized by law on the Patent and
Trademark Office or the Commissioner of Patents and Trademarks or an
employee of the Patent and Trademark Office in his or her official
capacity, shall be served on the Solicitor for the Patent and Trademark
Office or a Department employee designated by the Solicitor.
(c) Except as otherwise provided in this part, any component or
Department employee served with a summons or complaint shall immediately
notify and deliver the summons or complaint to the office of the General
Counsel. Any employee of the Patent and Trademark Office served with a
summons or complaint shall immediately notify and deliver the summons or
complaint to the office of the Solicitor.
(d) Any Department employee receiving a summons or complaint shall
note on the summons or complaint the date, hour, and place of service
and whether service was by personal delivery or by mail.
(e) When a legal proceeding is brought to hold a Department employee
personally liable in connection with an action taken in the conduct of
official business, rather than liable in an official capacity, the
Department employee by law is to be served personally with process.
Service of process in this case is inadequate when made upon the General
Counsel or the Solicitor or their designees. Except as otherwise
provided in this part, a Department employee sued personally for an
action taken in the conduct of official business shall immediately
notify and deliver a copy of the summons or complaint to the office of
the General Counsel. Any employee of the Patent and Trademark Office
sued personally for an action taken in the conduct of official business
shall immediately notify and deliver a copy of the summons or complaint
to the Office of the Solicitor.
(f) A Department employee sued personally in connection with official
business may be represented by the Department of Justice at its
discretion. See 28 CFR 50.15 and 50.16 (1987).
(g) The General Counsel or Solicitor or Department employee
designated by either, when accepting service of process for a Department
employee in an official capacity, shall endorse on the Marshal's or
server's return of service form or receipt for registered or certified
mail the following statement: ''Service accepted in official capacity
only.'' The statement may be placed on the form or receipt with a rubber
stamp.
(h) Upon acceptance of service or receiving notification of service,
as provided in this section, the General Counsel and Solicitor shall
take appropriate steps to protect the rights of the Department,
component, the Secretary or Department employee involved.
15 CFR 15.3 PART 15a -- TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF
DOCUMENTS IN LEGAL PROCEEDINGS
Sec.
15a.1 Scope.
15a.2 Definitions.
15a.3 Department policy.
15a.4 Testimony or production of documents: General rule.
15a.5 Testimony of Department employees in proceedings involving the
United States.
15a.6 Legal proceedings between private litigants.
15a.7 Procedures when a Department employee receives a subpoena.
Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515, and
1518; Reorganization Plan No. 5 of 1950; 44 U.S.C. 3101.
Source: 53 FR 41319, Oct. 21, 1988, unless otherwise noted.
15 CFR 15a.1 Scope.
(a) This part prescribes the policies and procedures of the
Department with respect to the testimony of Department employees as
witnesses in legal proceedings and the production of documents of the
Department for use in legal proceedings pursuant to a request, order, or
subpoena.
(b) The Secretary is by law responsible for the custody, use, and
preservation of all documents and other property of the Department and
for the official conduct of Department employees, including the
appearance of any Department employee in a legal proceeding.
(c) This part does not apply to any legal proceeding in which a
Department employee is to testify, while on leave status, as to facts or
events that are in no way related to the official business of the
Department.
(d) This part is intended to ensure the orderly execution of the
affairs of the Department and not to impede any legal proceeding and in
no way affects the rights and procedures governing public access to
records pursuant to the Freedom of Information Act or the Privacy Act.
See 15 CFR 15a.4.
(e) Components of the Department may prescribe or retain
supplementary regulations not inconsistent with this Part.
15 CFR 15a.2 Definitions.
For the purpose of this part:
(a) Component means Office of the Secretary or an operating unit of
the Department as defined in Department Organization Order 1-1.
(b) Demand means a request, order, or subpoena for testimony or
documents for use in a legal proceeding.
(c) Department means the United States Department of Commerce.
(d) Department employee means any officer or employee of the
Department, including commissioned officers of the National Oceanic and
Atmospheric Administration.
(e) Document means any record, paper, and other property held by the
Department, including without limitation official letters, telegrams,
memoranda, reports, studies, calendar and diary entries, maps, graphs,
pamphlets, notes, charts, tabulations, analyses, statistical or
informational accumulations, any kind of summaries of meetings and
conversations, film impressions, magnetic tapes, and sound or mechanical
reproductions.
(f) General Counsel means the General Counsel of the Department or
other Department employee to whom the General Counsel has delegated
authority to act under this part, or the chief legal officer (or
designee) of the Department of Commerce component concerned.
(g) Legal proceeding means a proceeding before a tribunal constituted
by law, including a court, an administrative body or commission, an
administrative law judge or hearing officer or any discovery proceeding
in support thereof.
(h) Official business means the authorized business of the
Department.
(i) Secretary means Secretary of Commerce.
(j) Testimony means a statement given in person before a tribunal or
by deposition for use before the tribunal or any other statement given
for use before a tribunal in a legal proceeding.
(k) United States means the Federal Government, its departments and
agencies, and individuals acting on behalf of the Federal Government.
15 CFR 15a.3 Department policy.
The Department's policy is that its documents will not be voluntarily
produced and Department employees will not voluntarily appear as
witnesses in a legal proceeding. The reasons for this policy include:
(a) To conserve the time of Department employees for conducting
official business;
(b) To minimize the possibility of involving the Department in
controversial or other issues that are not related to its mission;
(c) To prevent the possibility that the public will misconstrue
variances between personal opinions of Department employees and
Department policy;
(d) To avoid spending the time and money of the United States for
private purposes; and
(e) To preserve the integrity of the administrative process.
15 CFR 15a.4 Testimony or production of documents; general rule.
(a) No Department employee shall give testimony concerning the
official business of the Department or produce any document in any legal
proceeding without the prior authorization of the General Counsel.
Where appropriate, a Department employee may be instructed in writing
not to give testimony or produce a document. Without the approval of
the General Counsel, no Department employee shall answer inquiries from
a person not employed by the Department regarding testimony or documents
subject to a demand or a potential demand under the provisions of this
Part. All inquiries, unless they involve a demand or potential demand
on an employee of the Patent and Trademark Office, shall be referred to
the General Counsel. Inquiries involving a demand or potential demand
on an employee of the Patent and Trademark Office shall be referred to
the Solicitor.
(b) A certified copy of a document for use in a legal proceeding will
be provided upon written request and payment of applicable fees.
Written requests for certification shall be addressed to the chief legal
counsel for the component having possession, custody, or control of the
document. Unless governed by another applicable provision of law or
component regulation, the applicable fees include charges for
certification and reproduction as set out in 15 CFR 4.9. Other
reproduction costs and postage fees, as appropriate, must also be borne
by the requester.
(c)(1) Request for testimony or document. A request for testimony of
a Department employee, other than an employee of the Patent and
Trademark Office, shall be addressed to the General Counsel, Room 5870,
Department of Commerce, Washington, DC 20230. A request for testimony
of an employee of the Patent and Trademark Office shall be made to the
Solicitor for the Patent and Trademark Office. The mailing address of
the Solicitor is Box 8, Patent and Trademark Office, Washington, DC
20231. A request for a document, other than a document within the
possession, custody, and control of the Patent and Trademark Office,
shall be made to the General Counsel. A request for a document within
the possession, custody, and control of the Patent and Trademark Office
shall be made to the Solicitor.
(2) Subpoenas. A subpoena for testimony by a Department employee or
a document, other than testimony of an employee of the Patent and
Trademark Office or a document within the possession, custody, and
control of the Patent and Trademark Office, shall be served in
accordance with the Federal Rules of Civil or Criminal Procedure as
appropriate, or applicable state procedure, and a copy of the subpoena
shall be sent to the General Counsel. A subpoena for testimony by an
employee of the Patent and Trademark Office or a document within the
possession, custody, and control of the Patent and Trademark Office
shall be served in accordance with the Federal Rules of Civil or
Criminal Procedure as appropriate, or applicable state procedure, and a
copy of the subpoena shall be sent to the Solicitor.
(3) Affidavit. Every request and subpoena shall be accompanied by an
affidavit or declaration under 28 U.S.C. 1746 or, if an affidavit or
declaration is not feasible, a statement setting forth the title of the
legal proceeding, the forum, the requesting party's interest in the
legal proceeding, the reasons for the request or subpoena, a showing
that the desired testimony or document is not reasonably available from
any other source, and if testimony is requested, the intended use of the
testimony, a general summary of the testimony desired, and a showing
that no document could be provided and used in lieu of testimony. The
purpose of this requirement is to permit the General Counsel to make an
informed decision as to whether testimony or production of a document
should be authorized.
(d) Any Department employee, other than an employee of the Patent and
Trademark Office, who is served with a demand shall immediately notify
the General Counsel. An employee of the Patent and Trademark Office
served with a demand shall immediately notify the Solicitor.
(e) The General Counsel may authorize and direct a Department
employee to testify concerning official business or to produce a
document in a legal proceeding when: the Department has a significant
interest in the legal proceeding, in the opinion of the General Counsel,
production of a document or presenting factual or expert testimony by a
Department employee would be in the best interest of the Department or
in the public interest, or in such other circumstances as the General
Counsel may determine are appropriate. When production of a document is
authorized by the General Counsel, fees will be assessed in accordance
with paragraph (b) of this section.
(f) The Secretary retains the authority to authorize and direct
testimony in accordance with paragraph (e) of this section in those
cases where a statute or Presidential order mandates a personal decision
by the Secretary.
(g) The General Counsel may consult or negotiate with an attorney for
a party or the party, if not represented by an attorney, to refine or
limit a demand so that compliance is less burdensome or obtain
information necessary to make the determination required by paragraph
(e) of this section. Failure of the attorney or party to cooperate in
good faith to enable the General Counsel or Secretary to make an
informed determination under this part may serve as the basis for a
determination not to comply with the demand.
(h) A determination under this part to comply or not to comply with a
demand is not an assertion or waiver of privilege, lack of relevance,
technical deficiencies or any other ground for noncompliance. The
Department reserves the right to oppose any demand on any legal ground
independent of any determination under this part.
15 CFR 15a.5 Testimony of Department employees in proceedings involving
the United States.
(a) A Department employee may not testify as an expert or opinion
witness for any party other than the United States.
(b) When appropriate, the General Counsel may authorize a Department
employee to give testimony as an expert or opinion witness on behalf of
the United States.
(c) Whenever, in any legal proceeding involving the United States, a
request is made by an attorney representing or acting under the
authority of the United States, the General Counsel will make all
necessary arrangements for the Department employee to give testimony on
behalf of the United States. Where appropriate, the General Counsel may
require reimbursement to the Department of the expenses associated with
a Department employee giving testimony on behalf of the United States.
15 CFR 15a.6 Legal proceedings between private litigants.
(a) Testimony by a Department employee and production of documents in
a legal proceeding not involving the United States shall be governed by
15a.4.
(b) If a Department employee is authorized to give testimony in a
legal proceeding not involving the United States, the testimony, if
otherwise proper, shall be limited to facts within the personal
knowledge of the Department employee. A Department employee is
prohibited from giving expert or opinion testimony, answering
hypothetical or speculative questions, or giving testimony with respect
to subject matter which is privileged. If a Department employee is
authorized to testify in connection with the employee's involvement or
assistance in a quasi-judicial proceeding which is taking place or took
place before the Department, that employee is further prohibited from
giving testimony on the manner and extent to which the record of the
quasi-judicial proceeding was considered or studied or as to the bases,
reasons, mental processes, analyses, or conclusions for the decision
rendered in the quasi-judicial proceeding.
15 CFR 15a.7 Procedures when a Department employee receives a subpoena.
(a) Except in the case of an employee of the Patent and Trademark
Office, any Department employee who receives a subpoena shall
immediately forward the subpoena to the General Counsel. In the case of
an employee of the Patent and Trademark Office, the subpoena shall
immediately be forwarded to the Solicitor. The General Counsel will
determine the extent to which a Department employee will comply with the
subpoena in accordance with the provisions of 15a.4(e).
(b) If the Department employee is not authorized by the General
Counsel to comply with the subpoena, the Department employee shall
appear at the time and place stated in the subpoena, produce a copy of
this Part, and respectfully refuse to provide any testimony or produce
any document. United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
(c) Where the Department employee is an employee of the Office of the
Inspector General, the Inspector General, in consultation with the
General Counsel, will make any necessary determinations under paragraphs
(a) and (b) of this section.
(d) When necessary or appropriate, the General Counsel will request
assistance from the Department of Justice or a U.S. Attorney or
otherwise assure the presence of an attorney to represent the interests
of the Department, a component of the Department, or a Department
employee.
15 CFR 15a.7 PART 15b -- INVOLUNTARY CHILD AND SPOUSAL SUPPORT
ALLOTMENTS OF NOAA CORPS OFFICERS
Sec.
15b.1 Purpose.
15b.2 Applicability and scope.
15b.3 Definitions.
15b.4 Policy.
15b.5 Procedures.
Authority: 37 U.S.C. 101, 706; 15 U.S.C. 1673; 42 U.S.C. 665.
Source: 53 FR 15548, May 2, 1988, unless otherwise noted.
15 CFR 15b.1 Purpose.
This part provides implementing policies governing involuntary child
or child and spousal support allotments for officers of the uniformed
service of the National Oceanic and Atmospheric Administration (NOAA),
and prescribes applicable procedures.
15 CFR 15b.2 Applicability and scope.
This part applies to Commissioned Officers of the NOAA Corps on
active duty.
15 CFR 15b.3 Definitions.
(a) Active duty. Full-time duty in the NOAA Corps.
(b) Authorized person. Any agent or attorney of any state having in
effect a plan approved under part D of title IV of the Social Security
Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery
of any amounts owed as child or child and spousal support (including,
when authorized under the state plan, any official of a political
subdivision); and the court that has authority to issue an order
against a member for the support and maintenance of a child or any agent
of such court.
(c) Child support. Periodic payments for the support and maintenance
of a child or children, subject to and in accordance with state or local
law. This includes but is not limited to, payments to provide for
health, education, recreation, and clothing or to meet other specific
needs of such a child or children.
(d) Designated official. The official who is designated to receive
notices of failure to make payments from an authorized person (as
defined in paragraph (b) of this section). For the Department of
Commerce this official is the Assistant General Counsel for
Administration.
(e) Notice. A court order, letter, or similar documentation issued
by an authorized person providing notification that a member has failed
to make periodic support payments under a support order.
(f) Spousal support. Periodic payments for the support and
maintenance of a spouse or former spouse, in accordance with state and
local law. It includes, but is not limited to, separate maintenance,
alimony while litigation continues, and maintenance. Spousal support
does not include any payment for transfer of property or its value by an
individual to his or her spouse or former spouse in compliance with any
community property settlement, equitable distribution of property, or
other division of property between spouses or former spouses.
(g) Support order. Any order for the support of any person issued by
a court of competent jurisdiction or by administrative procedures
established under state law that affords substantial due process and is
subject to judicial review. A court of competent jurisdiction includes:
(1) Indian tribal courts within any state, territory, or possession of
the United States and the District of Columbia; and (2) a court in any
foreign country with which the United States has entered into an
agreement that requires the United States to honor the notice.
15 CFR 15b.4 Policy.
(a) It is the policy of the Department of Commerce to require
Commissioned Officers of the NOAA Corps on active duty to make
involuntary allotments from pay and allowances as payment of child, or
child and spousal, support payments when the officer has failed to make
periodic payments under a support order in a total amount equal to the
support payable for two months or longer. Failure to make such payments
shall be established by notice from an authorized person to the
designated official. Such notice shall specify the name and address of
the person to whom the allotment is payable. The amount of the
allotment shall be the amount necessary to comply with the support
order. If requested, the allotment may include arrearages as well as
amounts for current support, except that the amount of the allotment,
together with any other amounts withheld for support from the officer as
a percentage of pay, shall not exceed the limits prescribed in section
303 (b) and (c) of the Consumer Credit Protection Act (15 U.S.C. 1673).
An allotment under this Part shall be adjusted or discontinued upon
notice from an authorized person.
(b) Notwithstanding the above, no action shall be taken to require an
allotment from the pay and allowances of any officer until such officer
has had a consultation with an attorney from the Office of the Assistant
General Counsel for Administration, in person, to discuss the legal and
other factors involved with respect to the officer's support obligation
and his/her failure to make payments. Where it has not been possible,
despite continuing good faith efforts to arrange such a consultation,
the allotment shall start the first pay period beginning after 30 days
have elapsed since the notice required in paragraph (d)(1) of 15b. is
given to the affected officer.
15 CFR 15b.5 Procedures.
(a) Service of notice (1) An authorized person shall send to the
designated official a signed notice that includes:
(i) A statement that delinquent support payments equal or exceed the
amount of support payable for 2 months under a support order, and a
request that an allotment be initiated pursuant to 42 U.S.C. 665.
(ii) A certified copy of the support order.
(iii) The amount of the monthly support payment. Such amount may
include arrearages, if a support order specifies the payment of such
arrearages. The notice shall indicate how much of the amount payable
shall be applied toward liquidation of the arrearages.
(iv) Sufficient information identifying the officer to enable
processing by the designated official. The following information is
requested:
(A) Full name;
(B) Social Security Number;
(C) Date of birth; and
(D) Duty station location.
(v) The full name and address of the allottee. The allottee shall be
an authorized person, the authorized person's designee, or the recipient
named in the support order.
(vi) Any limitations on the duration of the support allotment.
(vii) A certificate that the official sending the notice is an
authorized person.
(viii) A statement that delinquent support payments are more than 12
weeks in arrears, if appropriate.
(2) The notice shall be accomplished by certified or registered mail,
return receipt requested, or by personal service, upon the appropriate
designated official, who shall note the date and time of receipt on the
notice.
(3) The notice is effective when it is received in the office of the
designated official.
(4) When the information submitted is not sufficient to identify the
officer, the notice shall be returned directly to the authorized person
with an explanation of the deficiency. However, prior to returning the
notice if there is sufficient time, an attempt should be made to inform
the authorized person who caused the notice to be served, that it will
not be honored unless adequate information is supplied.
(5) Upon receipt of effective notice of delinquent support payments,
together with all required supplementary documents and information, the
designated official shall identify the officer from whom moneys are due
and payable. The allotment shall be established in the amount necessary
to comply with the support order and to liquidate arrearages if provided
by a support order when the maximum amount to be allotted under this
provision, together with any other moneys withheld for support from the
officer, does not exceed:
(i) 50 percent of the officer's disposable earnings for any month
where the officer asserts by affidavit or other acceptable evidence,
that he/she is supporting a spouse and/or dependent child, other than a
party in the support order. When the officer submits evidence, copies
shall be sent to the authorized person, together with notification that
the officer's support claim will be honored.
If the support claim is contested by the authorized person, that
authorized person may refer this matter to the appropriate court or
other authority for resolution.
(ii) 60 percent of the officer's disposable earnings for any month
where the officer fails to assert by affidavit or other acceptable
evidence that he/she is supporting a spouse and/or dependent child.
(iii) Regardless of the limitations above, an additional 5 percent of
the officer's disposable earnings shall be withheld when it is stated in
the notice that the officer is in arrears in an amount equivalent to 12
or more weeks' support.
(b) Disposable earnings. The following moneys are subject to
inclusion in computation of the officer's disposable earnings:
(1) Basic pay.
(2) Special pay (including enlistment and reenlistment bonuses).
(3) Accrued leave payments (basic pay portions only).
(4) Aviation career incentive pay.
(5) Incentive pay for Hazardous Duty.
(6) Readjustment pay.
(7) Diving pay.
(8) Sea pay.
(9) Severance pay (including disability severance pay).
(10) Retired pay (including disability retired pay).
(c) Exclusions. In determining the amount of any moneys due from or
payable by the United States to any individual, there shall be excluded
amounts which are:
(1) Owed by the officer to the United States.
(2) Required by law to be deducted from the remuneration or other
payment involved, including, but not limited to:
(i) Amounts withheld from benefits payable under Title II of the
Social Security Act where the withholding is required by law.
(ii) Federal employment taxes.
(3) Properly withheld for federal and state income tax purposes if
the withholding of the amounts is authorized by law and if amounts
withheld are not greater than would be the case if the individual
claimed all dependents to which he/she were entitled. The withholding
of additional amounts pursuant to section 3402(i) of Title 26 of the
United States Code may be permitted only when the officer presents
evidence of a tax obligation which supports the additional withholding.
(4) Deducted for servicemen's Group Life Insurance coverage.
(5) Advances of pay that may be due and payable by the officer at
some future date.
(d) Officer notification. (1) As soon as possible, but not later
than 15 calendar days after the date of receipt of notice, the
designated official shall send to the officer, at his/her duty station
or last known address, written notice:
(i) That notice has been received from an authorized person,
including a copy of the documents submitted;
(ii) Of the maximum limitations set forth, with a request that the
officer submit supporting affidavits or other documentation necessary
for determining the applicable percentage limitation;
(iii) That the officer may submit supporting affidavits or other
documentation as evidence that the information contained in the notice
is in error;
(iv) That by submitting supporting affidavits or other necessary
documentation, the officer consents to the disclosure of such
information to the party requesting the support allotment;
(v) Of the amount or percentage that will be deducted if the officer
fails to submit the documentation necessary to enable the designated
official to respond to the notice within the prescribed time limits;
(vi) That legal counsel will be provided by the Office of the
Assistant General Counsel for Administration; and
(vii) Of the date that the allotment is scheduled to begin.
(2) The officer shall be provided with the following:
(i) A consultation in person with an attorney from the Office of the
Assistant General Counsel for Administration, to discuss the legal and
other factors involved with the officer's support obligation and his/her
failures to make payment.
(ii) Copies of any other documents submitted with the notice.
(3) The Office of the Assistant General Counsel for Administration
will make every effort to see that the officer receives a consultation
concerning the support obligation and the consequences of failure to
make payments within 30 days of the notice required in paragraph (d)(1).
In the event such consultation is not possible, despite continuing good
faith efforts to arrange a consultation, no action shall be taken to
require an allotment from the pay and allowances of any NOAA Corps
Officer until 30 days have elapsed after the notice described in
paragraph (d)(1) is given to the affected officer.
(4) If, within 30 days of the date of the notice, the officer has
furnished the designated official affidavits or other documentation
showing the information in the notice to be in error, the designated
official shall consider the officer's response. The designated official
may return to the authorized person, without action, the notice for a
statutorily required support allotment together with the member's
affidavit and other documentation, if the member submits substantial
proof of error, such as:
(i) The support payments are not delinquent.
(ii) The underlying support order in the notice has been amended,
superseded, or set aside.
(e) Absence of funds. (1) When notice is served and the identified
officer is found not to be entitled to moneys due from or payable by
NOAA, the designated official shall return the notice to the authorized
person, and advise that no moneys are due from or payable by NOAA to the
named individual.
(2) Where it appears that moneys are only temporarily exhausted or
otherwise unavailable, the authorized person shall be fully advised as
to why, and for how long, the money will be unavailable.
(3) In instances where the officer separates from active duty
service, the authorized person shall be informed by the Office of
Commissioned Personnel, NOAA Corps that the allotment is discontinued.
(4) Payment of statutorily required allotments shall be enforced over
other voluntary deductions and allotments when the gross amount of pay
and allowances is not sufficient to permit all authorized deductions and
collections.
(f) Allotment of funds. (1) The authorized person or allottee shall
notify the designated official promptly if the operative court order
upon which the allotment is based is vacated, modified, or set aside.
The designated official shall also be notified of any events affecting
the allottee's eligibility to receive the allotment, such as the former
spouse's remarriage, if a part of the payment is for spousal support,
and notice of a change in eligibility for child support payments under
circumstances of death, emancipation, adoption, or attainment of
majority of a child whose support is provided through the allotment.
(2) An allotment established under this Directive shall be adjusted
or discontinued upon notice from the authorized person.
(3) Neither the Department of Commerce nor any officer or employee
thereof, shall be liable for any payment made from moneys due from, or
payable by, the Department of Commerce to any individuals pursuant to
notice regular on its face, if such payment is made in accordance with
this Part. If a designated official receives notice based on support
which, on its face, appears to conform to the law of the jurisdiction
from which it was issued, the designated official shall not be required
to ascertain whether the authority that issued the orde had obtained
personal jurisdiction over the member.
(4) Effective date of allotment. The allotment shall start with the
first pay period beginning after the officer has had a consultation with
an attorney from the Office of the Assistant General Counsel for
Administration but not later than the first pay period beginning after
30 days have elapsed since the notice required in paragraph (d)(1) of
this section is given to the affected officer. The Department of
Commerce shall not be required to vary its normal NOAA Corps allotment
payment cycle to comply with the notice.
(g) Designated official. Notice should be sent to: The Assistant
General Counsel for Administration, Office of the General Counsel, U.S.
Department of Commerce, Washington, DC 20230, (202) 377-5387.
15 CFR 15b.5 PART 16 -- PROCEDURES FOR A VOLUNTARY CONSUMER PRODUCT
INFORMATION LABELING PROGRAM
Sec.
16.1 Purpose.
16.2 Description and goal of program.
16.3 Definitions.
16.4 Finding of need to establish a specification for labeling a
consumer product.
16.5 Development of performance information labeling specifications.
16.6 Establishment of fees and charges.
16.7 Participation in program.
16.8 Termination of participation.
16.9 Rules governing designated agents.
16.10 The Department of Commerce Mark.
16.11 Amendment or revision of a performance information labeling
specification.
16.12 Consumer education.
16.13 Coordination with State and local programs.
16.14 Annual report.
Authority: Sec. 2, 31 Stat. 1449, as amended; sec. 1, 64 Stat.
371, (15 U.S.C. 272); Re-organization Plan No. 3 of 1946, Part VI.
Source: 42 FR 26648, May 25, 1977, unless otherwise noted.
15 CFR 16.1 Purpose.
The purpose of this part is to establish procedures under which a
voluntary consumer product information labeling program administered by
the Department of Commerce will function.
15 CFR 16.2 Description and goal of program.
(a) The Department's Voluntary Consumer Product Information Labeling
Program makes available to consumers, at the point of sale, information
on consumer product performance in an understandable and useful form so
as to facilitate accurate consumer purchasing decisions and enhance
consumer satisfaction. It also educates consumers, distributors and
retailers in the use of the product performance information displayed
and provides manufacturers and other persons who participate in the
program with an opportunity to convey to the public the particular
advantages of their products. These objectives are accomplished by:
(1) Selecting or developing standardized test methods by which
selected product performance characteristics can be measured;
(2) Developing labeling methods by which information concerning
product performance can be transmitted in useful form to consumers at
the point of sale;
(3) Encouraging manufacturers and other participants in the program
voluntarily to test and label their products according to the selected
or developed methods; and
(4) Encouraging consumers through various informational and
educational programs to utilize the product performance information
provided.
(b) The program involves voluntary labeling by enrolled participants
of selected categories of consumer products with information concerning
selected performance characteristics of those products. The performance
characteristics selected are those that are of demonstrable importance
to consumers, that consumers cannot evaluate through mere inspection of
the product, and that can be measured objectively and reported
understandably to consumers. The consumer products covered include
those for which incorrect purchase decision can result in financial
loss, dissatisfaction, or inconvenience. The program seeks to avoid the
duplication of other Federal programs under which performance
characteristics are labeled by exempting those performance
characteristics from this program. However, where the Federal agency
concerned agrees, the Department of Commerce may include information
about those performance characteristics in CPILP labels if, by doing so,
product comparison at the point of sale is simplified for consumers, and
the complexity of product labeling is reduced for the manufacturers by
enabling them to comply with the labeling requirements of other Federal
agencies through participation in CPILP.
(c) For selected categories of consumer products, the program
includes advertising guidelines covering situations where quantitative
performance values are stated in advertising or where qualitative
comparisons are made of the performance of different products.
(42 FR 26648, May 25, 1977, as amended at 43 FR 8255, Mar. 1, 1978)
15 CFR 16.3 Definitions.
(a) The term Secretary means the Secretary of Commerce or her
designee.
(b) The term consumer means the first person who purchases a consumer
product for purposes other than resale.
(c) The term participant means a manufacturer, assembler or private
brand labeler of consumer products or an importer of such products for
resale and who participates in the program.
(d) The term consumer product means any article produced or
distributed for sale to a consumer for the use, consumption, or
enjoyment of such consumer. The term does not include products
customarily intended primarily for business, commercial, or industrial
use.
(e) The term person means an individual; a manufacturer;
distributor; retailer; importer; private brand labeler; government
agency at the Federal (including any agency of the Department of
Commerce), State and local level; consumer organization; trade
association; standards writing body; professional society; testing
laboratory; or educational institution.
(f) The term performance characteristic means a performance
characteristic of a consumer product that can be measured in an
objective manner with respect to a given consumer product.
(g) The term Specification means a Performance Information Labeling
Specification developed under 16.5.
(h) The term label means printed matter affixed to or otherwise
provided with a consumer product and containing all of the performance
characteristics as prescribed by the Specification applicable to that
product.
(i) The term designated agent means a person as defined in paragraph
(e) of this section, who has been designated by the Secretary to carry
out appropriate operational procedures on behalf of more than one
participant in this program in accordance with rules set out under
16.9.
15 CFR 16.4 Finding of need to establish a specification for labeling a
consumer product.
(a) Any person may request the Secretary to find that there is a need
to label a particular consumer product with information concerning one
or more specific performance characteristics of that product.
(b) Such a request shall be in writing and will, to the extent
practicable, include the following information:
(1) Identification of the consumer product;
(2) Extent that the product identified in paragraph (b)(1) of this
section is used by the public and, if known, what the production or
sales volume is of such product;
(3) Nature and extent of difficulty experienced by consumers in
making informed purchase decisions because of a lack of knowledge
regarding the performance characteristics of the identified consumer
product;
(4) Potential or actual loss to consumers as a result of an incorrect
decision based on an inadequate understanding of the performance
characteristics of the identified consumer product;
(5) Extent of incidence of consumer complaints arising from or
reasonably traceable to lack of knowledge regarding the performance
characteristics of the identified consumer product;
(6) If known, whether there currently exist test methods which could
be used to test the performance characteristics of the identified
consumer product and an identification of those test methods;
(7) Reasons why it is felt, in cases where existing test methods are
identified in responding to paragraph (b)(6) of this section, that such
test methods are suitable for making objective measurements of the
performance characteristics of the identified consumer product; and
(8) Estimated cost to participants to test and label the product.
(c) The Secretary may ask for more information to support a request
made under paragraph (a) of this section if she feels it is necessary to
do so, or, if she deems it to be in the public interest, may develop
such information herself as by consultation on a one-time basis with
consumers, consumer organizations, and others. The Secretary shall act
expeditiously on all requests and shall notify the requester of her
decision in writing. If the Secretary determines that there is no need
to establish a Specification for labeling the requested consumer product
performance characteristics, or because of a lack of resources, she will
decline to act further on the request. In those instances where the
Secretary declines a request, she shall state the reasons for so
declining.
(d) If the Secretary finds that a need exists to establish a
Specification for labeling a consumer product under this program, she
shall publish a notice in the Federal Register setting out such finding
and its basis and stating that she is developing a proposed
Specification in accordance with 16.5.
15 CFR 16.5 Development of performance information labeling
specifications.
(a) If the Secretary makes a finding of need pursuant to 16.4, she
will publish a proposed Performance Information Labeling Specification
in the Federal Register with a notice giving the complete text of the
proposed Specification and any other pertinent information. The notice
will invite any interested person to submit written comments on the
proposed Specification within 45 days after its publication in the
Federal Register, unless another time limit is provided by the
Secretary. Interested persons wanting to express their views in an
informal hearing may do so, if within 15 days after the proposed
Specification is published in the Federal Register, they request the
Secretary to hold a hearing. Such informal hearings shall be held so as
to give all interested persons an opportinity for the oral presentation
of data, views, or arguments in addition to the opportunity to make
written submissions. Notice of such hearings shall be published in the
Federal Register. A transcript shall be kept of any oral presentations.
(b) Each Specification shall as a minimum include:
(1) A description of the performance characteristics of the consumer
product covered;
(2) An identification by reference of the test methods to be used in
measuring the performance characteristics. The test methods, where they
exist and are deemed appropriate for inclusion in the particular
Specification involved, shall be those which are described in
nationally-recognized voluntary standards. Where appropriate test
methods do not exist, they will be developed by the Department of
Commerce in cooperation with interested parties and set out in full in
the Specification;
(3) A prototype label and directions for displaying the label on or
with the consumer product concerned. Such directions will not prohibit
the display of additional information by the participant on space
adjacent to the marked boundaries of the label; and
(4) Conditions of participation.
(c) The Secretary, after consideration of all written and oral
comments and other materials received in accordance with paragraph (a)
of this section, shall publish in the Federal Register within 30 days
after the final date for receipt of comments, or as soon as practicable
thereafter, a notice either:
(1) Giving the complete text of a final Specification, including
conditions of use, and stating that any prospective participant in the
program desiring voluntarily to use the Department of Commerce Mark
developed under 16.10 must advise the Department of Commerce: or
(2) Stating that the proposed Specification will be further developed
before final publication; or
(3) Withdrawing the proposed Specification from further
consideration.
15 CFR 16.6 Establishment of fees and charges.
(a) The Secretary in conjunction with the use of the Working Capital
Fund of the National Institute of Standards & Technology, as authorized
under section 12 of the Act of March 3, 1901, as amended (15 U.S.C.
278b), for this program, shall establish fees and charges for use of the
Department of Commerce Label and Mark on each product. Such fees and
charges shall be related to the number of units of products labeled,
where appropriate. The fees and charges established by the Secretary,
which may be revised by her when she deems it appropriate to do so,
shall be in amounts calculated to make the operation of this program as
self-sufficient as reasonable. A separate notice will be published in
the Federal Register simultaneously with the notice of each proposed
Specification referred to in 16.5(a). Such notice will set out a
schedule of estimated fees and charges the Secretary proposes to
establish. The notice would be furnished for informational and guidance
purposes only in order that the public may evaluate the proposed
Specification in light of the expected fees to be charged.
(b) At such time as the Secretary publishes the notice announcing the
final Specification referred to in 16.5(c)(1), she shall simultaneously
publish a separate notice in the Federal Register setting forth the
final schedule of fees that will be charged participants in the program.
The effective date of such final schedule of fees shall be the same as
the date on which the final Specification takes effect.
(c) Revisions, if any, to the fees and charges established by the
Secretary under paragraph (b) of this section shall be published in
subsequent Federal Register notices and shall take effect not less than
thirty (30) days after the date of publication of such notice.
(d) The establishment of fees and charges under this section may, at
any time, be suspended by the Secretary for any length of time.
(42 FR 26648, May 25, 1977, as amended at 42 FR 57686, Nov. 4, 1977,
55 FR 38315, Sept. 18, 1990)
15 CFR 16.7 Participation in program.
(a) Any manufacturer, assembler, or private brand labeler of consumer
products or importer of such products for resale, desiring to
participate in this program will so notify the Secretary. The
notification will identify the particular Specification to be used and
the prospective participant's identification and model numbers for the
products to be labeled. The notification must include a statement that
if accepted as a participant in the program by the Secretary, the
prospective participant will:
(1) Abide by all conditions imposed by these procedures:
(2) Abide by the conditions contained in the Specification, as
prescribed in paragraph (d) of this section;
(3) Pay the fees and charges established by the Secretary; and
(4) Desist from using the Department of Commerce label and Mark if
his participation is terminated under 16.8.
(b) The Secretary shall act expeditiously on all requests to
participate in the program and shall notify each prospective participant
of her decision in writing. In those instances where the Secretary
declines a request, she shall state the reasons for so declining.
(c) If a prospective participant seeking to participate in the
program is notified by the Secretary that she proposes to deny that
prospective participant the right to participate, that prospective
participant shall have thirty (30) days from the receipt of such
notification to request a hearing under the provisions of 5 U.S.C. 556.
The Secretary's proposed denial shall become final through the issuance
of a written decision to such prospective participant in the event that
he does not appeal such notification by the end of the thirty (30) day
period. If however, such prospective participant requests a hearing
within that thirty (30) day period, the Secretary's proposed denial
shall be stayed pending the outcome of the hearing held pursuant to 5
U.S.C. 556.
(d) The conditions set out in each Specification will include, but
not be limited to, the following:
(1) Prior to the use of a Label, the participant will make or have
made the measurements to obtain the information required for inclusion
on the Label and, if requested, will forward within 30 days such
measurement data to the Secretary. Such measurement data will be kept
on file by the participant or his agent for two years after that product
is no longer manufactured unless otherwise provided in the
Specification.
(2) The participant will describe the test results on the Label as
prescribed in the Specification.
(3) The participant will display or arrange to display, in accordance
with the appropriate Specification, the Label on or with each individual
product of the type covered except for units exported from the U.S.
Participants who utilized more than one brand name may participate by
labeling some or all of the brand names. All models with the same brand
name must be included in the program unless they are for export only.
(4) The participant agrees at his expense to comply with any
reasonable request of the Secretary to have consumer products
manufactured, assembled, imported, or privately brand labeled by him
tested to determine that testing has been done according to the relevant
Specification.
(5) Participants may reproduce the Department of Commerce Label and
Mark in advertising: Provided, That the entire Label, complete with all
information required to be displayed at the point of retail sale, is
shown legibly and is not combined or associated directly with any other
mark or logo.
15 CFR 16.8 Termination of participation.
(a) The Secretary upon finding that a participant is not complying
with the conditions set out in these procedures or in a Specification
may terminate upon 30 days notice the participant's right to continue
his participation in the program: Provided, That the participant shall
first by given an opportunity to show cause why the participation should
not be terminated.
(b) Upon receipt of a notice from the Secretary of the proposed
termination, which notice shall set forth the reasons for such proposed
termination, the participant shall have thirty (30) days from the date
of receipt of such notification to request a hearing under the
provisions of 5 U.S.C. 556. The Secretary's proposed termination shall
become final through the issuance of a written decision to the
participant in the event such participant does not appeal the proposed
termination within the thirty (30) day period. If, however, the
participant requests a hearing within the thirty (30) day period, the
Secretary's proposed termination shall be stayed pending the outcome of
the hearing held pursuant to 5 U.S.C. 556.
(c) A participant may at any time terminate his participation and
responsibilities under this program with regard to a specific type of
product by giving written notice to the Secretary that he has
discontinued use of the Department of Commerce Label and Mark for all
consumer products of the type involved.
15 CFR 16.9 Rules governing designated agents.
(a) The following rules, requirements and tasks shall be applicable
with respect to the seeking of designated agent status and the
performance of that role after such status has been obtained. Each
person desiring to be designated as a designated agent under this
program shall:
(1) Make written application to the Secretary;
(2) Provide appropriate information showing his qualifications to
represent members within a given product area and that more than one
prospective participant in that product area is agreeable to such
representation; and
(3) Agree to service any participant in this program in the agent's
cognizant product area whether or not such participant is a member of
the organization or body which that agent represents.
(b) The Secretary may require a person seeking designated agent
status to supply further information before granting such status to that
person. The Secretary will notify each person seeking designated agent
status, in writing, as expeditiously as possible after evaluating such
person's application.
(c) Each person granted designated agent status shall:
(1) Provide the Secretary with a list of the participants that the
designated agent services under the program. The Secretary shall also
be provided an updated list as soon thereafter as may be practicable
whenever there are any changes in the list;
(2) Collect fees and charges from the participants serviced under
this program, consolidate such sums, and transmit those fees and charges
required under 16.6 to the Secreatry;
(3) Distribute Department of Commerce Marks developed under 16.10 or
instructions for the printing of such Marks to the participants that the
designated agent services under this program;
(4) Gather and consolidate such statistical information as may be
required by the Secretary from individual participants serviced;
(5) Provide the Secretary with reports, including the consolidate
statistical information referred to in paragraph (c)(4) of this section,
as may be called for by her, relative to the activities of the
participants the designated agent is servicing; and
(6) Perform any additional tasks mutually agreed upon by the
designated agent and the Secretary.
(d) If a person seeking designated agent status is notified by the
Secretary that she proposes to deny that person such status, that person
shall have thirty (30) days from the date of receipt of such
notification to request a hearing under the provisions of 5 U.S.C. 556.
The Secretary's proposed denial shall become final through the issuance
of a written decision to such person in the event that he does not
appeal such notification by the end of that thirty (30) day period. If,
however, such person requests a hearing within that thirty (30) day
period, the Secretary proposed denial shall be stayed pending the
outcome of the hearing held pursuant to 5 U.S.C. 556.
(e) If the Secretary finds that a designated agent has violated the
terms of paragraph (c) of this section, she may, after consultations
with such designated agent, notify such person that she proposes to
revoke his status as a designated agent.
(f) Upon receipt of a notice from the Secretary of the proposed
revocation, which notice shall set forth the reasons for such proposed
revocation, the designated agent shall have thirty (30) days from the
date of receipt of such notification to request a hearing under the
provisions of U.S.C. 556. The Secretary's proposed revocation shall
become final through the issuance of a written decision to the
designated agent in the event such designated agent does not appeal the
proposed revocation within that thirty (30) day period. If, however,
the designated agent requires a hearing within that thirty (30) day
period, the Secretary's proposed revocation shall be stayed pending the
outcome of the hearing held pursuant to 5 U.S.C. 556.
15 CFR 16.10 The Department of Commerce Mark.
The Department of Commerce shall develop a Mark which shall be
registered in the U.S. Patent and Trademark Office under 15 U.S.C. 1054
for use on each Label described in a Specification.
15 CFR 16.11 Amendment or revision of a performance information
labeling specification.
The Secretary may by order amend or revise any Specification
published under 16.5. The procedure applicable to the establishment of
a Specification under 16.5 shall be followed in amending or revising
such Specification. Such amendment or revision shall not apply to
consumer products manufactured prior to the effective date of the
amendment or revision.
15 CFR 16.12 Consumer education.
The Secretary, in close cooperation and coordination with interested
Government agencies, appropriate trade associations and industry
members, consumer organizations, and other interested persons shall
carry out a program to educate consumers relative to the significance of
the labeling program. Some elements of this program shall also be
directed toward informing retailers and other interested groups about
the program.
15 CFR 16.13 Coordination with State and local programs.
The Secretary will establish and maintain an active program of
communication with appropriate State and local government offices and
agencies and will furnish and make available information and assistance
that will promote uniformity in State and local programs for the
labeling of performance characteristics of consumer products.
15 CFR 16.14 Annual report.
The Secretary will prepare an annual report of activities under the
program, including an evaluation of the program and a list of
participants, designated agents, and types of consumer products covered.
15 CFR 16.14 PART 17 -- LICENSING OF GOVERNMENT-OWNED INVENTIONS IN THE CUSTODY OF THE DEPARTMENT OF COMMERCE
15 CFR 16.14 Subpart A -- Licensing of Rights in Domestic Patents and
Patent Applications
Sec.
17.1 Licensing rules.
15 CFR 16.14 Subpart B -- Licensing of Rights in Foreign Patents and Patent Applications -- (Reserved)
15 CFR 16.14 Subpart C -- Appeal Procedures for Licensing Department of
Commerce Patents
17.21 Purpose.
17.22 Definitions.
17.23 Authority to grant licenses.
17.24 Persons who may appeal.
17.25 Procedures.
17.26 Adjudicatory.
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)).
Editorial Note: 41 CFR Part 101-4 referred to in this part was
removed at 50 FR 28402, July 12, 1985.
15 CFR 16.14 Subpart A -- Licensing of Rights in Domestic Patents and Patent Applications
15 CFR 17.1 Licensing rules.
(a) The Government-wide rules for the licensing of rights in domestic
patents and patent applications vested in the United States of America,
found at 41 CFR 101-4.1, are applicable to all such licensing activities
of the Department of Commerce, subject to the following minor
clarifications:
(1) The term ''Government agency'' as defined at 41 CFR 101-4.102(c)
means the United States Department of Commerce or a designated operating
unit within the Department.
(2) The term ''The head of the Government agency'', as defined at 41
CFR 101-4.102(d), means the Secretary of Commerce or a designee.
(42 FR 54415, Oct. 6, 1977)
15 CFR 17.1 Subpart B -- Licensing of Rights in Foreign Patents and Patent Applications -- (Reserved)
15 CFR 17.1 Subpart C -- Appeal Procedures for Licensing Department of
Commerce Patents
Source: 49 FR 7986, Mar. 5, 1984, unless otherwise noted.
15 CFR 17.21 Purpose.
This subpart describes the terms, conditions and procedures under
which a party may appeal from a decision of the Director of the National
Technical Information Service concerning the grant, denial,
interpretation, modification or termination of a license of any patent
in the custody of the Department of Commerce.
15 CFR 17.22 Definitions.
(a) 41 CFR Part 101-4 shall mean the General Services Administration
Final Rule concerning ''Patents: Licensing of Federally Owned
Inventions'' which was originally published in the Federal Register,
volume 47, number 152, Friday, August 6, 1982 at pages 34148 through
34151.
(b) Director shall mean the Director of the National Technical
Information Service, and operating agency within the U.S. Department of
Commerce.
(c) Under Secretary means the Under Secretary for Technology who is
an officer appointed by the President and confirmed by the Senate and is
an official to whom the Director reports within the Department of
Commerce.
(49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990)
15 CFR 17.23 Authority to grant licenses.
The Director has been duly delegated authority to make any decision
or determination concerning the granting, denial, interpretation,
modification or termination of any license of any patent in the custody
and control of the U.S. Department of Commerce. The decision and
determination of the Director is final and conclusive on behalf of this
Department unless the procedures for appeal set forth below are
initiated.
15 CFR 17.24 Persons who may appeal.
The following person(s) may appeal to the Under Secretary any
decision or determination concerning the grant, denial, interpretation,
modification or termination of a license:
(a) A person whose application for a license has been denied;
(b) A licensee whose license has been modified or terminated in whole
or in part; or
(c) A person who has timely filed a written objection in response to
the notice published in the Federal Register as required by 41 CFR
101-4.104-3(a)(1)(c)(i) or 101-4.104-3(b)(1)(i) and who can demonstrate
to the satisfaction of the Under Secretary that such person may be
damaged by the Director's determination.
(49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990)
15 CFR 17.25 Procedures.
(a) Any appellant party(ies) who was denied a license by the Director
under 17.24(a) shall not be entitled to an adversary hearing. Such
party(ies) shall file appropriate documents no later than 30 days from
the receipt of the Director's decision unless the Under Secretary grants
for good cause an extension of time. The notice, in concise and brief
terms, should state the grounds for appeal and include copies of all
pertinent documents. Accompanying the notice should be concise
arguments as to why the Director's decision should be rejected or
modified.
(b) The Under Secretary shall render a written opinion within 30 days
of receiving all required documentation in a non-adversary appeal.
(c) Judicial review is available as the law permits.
(49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990)
15 CFR 17.26 Adjudicatory.
(a) Any appellant party who seeks review of the Director's decision
based upon a modification or termination of a license by the Director
under 17.24(b), or who has filed a timely objection and can demonstrate
damages as provided in 17.24(c), shall be entitled to an adversary
hearing in accord with the provisions of the Administrative Procedures
Act (5 U.S.C. 554-557). A party may waive an adversary hearing by filing
a written waiver with the Under Secretary.
(b) When an adversary hearing is required under 17.24 (b) or (c) the
Under Secretary shall appoint as promptly as possible an Administrative
Law Judge who shall hold hearings no later than 45 days from the date of
the appointment. The hearings will be conducted in conformity with the
objectives of the Administrative Procedure Act. The Administrative Law
Judge shall submit a written recommendation to the Under Secretary no
later than 30 days subsequent to the hearing and/or the filing of any
required written arguments or documentation.
(c) The Under Secretary shall render a final written decision on
behalf of the Department based upon the appeal file which shall include
the hearing record, exhibits, written submissions of the party(ies), and
the recommendation of the Administrative Law Judge. The Under
Secretary's decision shall include the reasons which form the basis of
the determination. The final decision may uphold, overrule, or modify
the Director's decision or take any action deemed appropriate.
(d) Judicial review is available as the law permits.
(49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990)
15 CFR 17.26 PART 18 -- ATTORNEY'S FEES AND OTHER EXPENSES
Sec.
18.1 Purpose of these rules.
18.2 Definitions.
18.3 When the Act applies.
18.4 Proceedings covered.
18.5 Eligibility of applicants.
18.6 Standards for awards.
18.7 Allowable fees and expenses.
18.8 Rulemaking on maximum rates for attorney fees.
18.9 Awards against other agencies.
18.10 Delegations of authority.
18.11 Contents of application.
18.12 Net worth exhibit.
18.13 Documentation of fees and expenses.
18.14 When an application may be filed.
18.15 Filing and service of documents.
18.16 Answer to application.
18.17 Reply.
18.18 Comments by other parties.
18.19 Settlement.
18.20 Further proceedings.
18.21 Decision.
18.22 Agency review.
18.23 Judical review.
18.24 Payment of award.
Authority: 5 U.S.C. 504(c)(1).
Source: 47 FR 13510, Mar. 31, 1982, unless otherwise noted.
15 CFR 17.26 General Provisions
15 CFR 18.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ''the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ''adversary adjudications'') before
the Department of Commerce (the word Department includes its component
agencies). An eligible party may receive an award when it prevails over
the Department, unless the Department's position in the proceeding was
substantially justified or special circumstances make an award unjust.
The rules in this part describe the parties that are eligible for awards
and the Department's proceedings that are covered by the Act. They also
explain how to apply for awards, and the procedures and standards that
the Department will use to make them.
15 CFR 18.2 Definitions.
As used in this part:
(a) Adversary adjudication means an adjudication under 5 U.S.C. 554
in which the position of the United States is represented by counsel or
otherwise, but excludes an adjudication for the purpose of establishing
or fixing a rate or for the purpose of granting or renewing a license.
(b) Adjudicative officer means the official, without regard to
whether the official is designated as an administrative law judge, a
hearing officer or examiner, or otherwise, who presided at the adversary
adjudication.
15 CFR 18.3 When the Act applies.
The Act applies to any adversary adjudication pending or commenced
before the Department on or after August 5, 1985. It also applies to
any adversary adjudication commenced on or after October 1, 1984, and
finally disposed of before August 5, 1985, provided that an application
for fees and expenses, as described in 18.11 through 18.14 of this
part, has been filed with the Department within 30 days after August 5,
1985, and to any adversary adjudication pending on or commenced on or
after October 1, 1981, in which an application for fees and other
expenses was timely filed and was dismissed for lack of jurisdiction.
(53 FR 6798, Mar. 3, 1988)
15 CFR 18.4 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the
Department and to appeals of decisions of contracting officers of the
Department made pursuant to section 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605) before agency boards of contract appeals as
provided in section 8 of that Act (41 U.S.C. 607). Adversary
adjudications conducted by the Department are adjudications under 5
U.S.C. 554 in which the position of this or any other agency of the
United States, or any component of an agency, is presented by an
attorney or other representative who enters an appearance and
participates in the proceeding. Pursuant to section 8(c) of the
Contract Disputes Act (41 U.S.C. 607(c)), the Department has arranged
for appeals from decisions by contracting officers of the Department to
be decided by the General Services Administration Board of Contract
Appeals. This Board, in accordance with its own procedures, shall be
responsible for making determinations on applications pursuant to the
Act relating to appeals to the Board from decisions of contracting
officers of the Department. Such determinations are final, subject to
appeal under 18.23. Any proceeding in which the Department may
prescribe a lawful present or future rate is not covered by the Act.
Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ''adversary adjudications.'' The Department proceedings
covered are:
(1) Department-wide. (i) Title VI Civil Rights hearings conducted by
the Department under 42 U.S.C. 2000d-1 and 15 CFR 8.12(d).
(ii) Handicap discrimination hearings conducted by the Department
under 29 U.S.C. 794(a) and 15 CFR 8.12(d).
(2) National Oceanic and Atmospheric Administration (''NOAA'')
(i) Proceedings concerning suspension, revocation, or modification of
a permit or license issued by NOAA.
(ii) Proceedings to assess civil penalties under any of the statutes
administered by NOAA.
(3) International Trade Administration. Enforcement proceedings
under the AntiBoycott provisions of the Export Administration Act of
1979, 50 U.S.C. app. 2407.
(4) Patent and Trademark Office. Disbarment proceedings of attorneys
and agents under 35 U.S.C. 32.
(b) The Department may also designate a proceeding not listed in
paragraph (a) of this section as an adversary adjudication for purposes
of the Act by so stating in an order initiating the proceeding or
designating the matter for hearing. The Department's failure to
designate a proceeding as an adversary adjudication shall not preclude
the filing of an application by a party who believes the proceeding is
covered by the Act; whether the proceeding is covered will then be an
issue for resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988)
15 CFR 18.5 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ''party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this part.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(5) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million
and not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered as an ''individual'' rather than a ''sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the adjudicative officer determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
adjudicative officer may determine that financial relationships of the
applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988)
15 CFR 18.6 Standards for awards.
(a) A prevailing applicant may receive an award for fees and expenses
incurred in connection with a proceeding, or in a significant and
discrete substantive portion of the proceedings, unless the position of
the Department over which the applicant has prevailed was substantially
justified. The position of the Department includes, in addition to the
position taken by the Department in the adversary adjudication, the
action or failure to act by the Department upon which the adversary
adjudication is based. The burden of proof that an award should not be
made to an eligible prevailing applicant because the Department's
position was substantially justified is on the agency counsel.
(b) An award will be reduced or denied if the applicant has unduly or
unreasonably protracted the proceeding or if special circumstances make
the award sought unjust.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.7 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under this rule may
exceed $75.00 per hour. No award to compensate an expert witness may
exceed the highest rate at which the Department pays expert witnesses.
However, an award may also include the reasonable expenses of the
attorney, agent, or witness as a separate item, if the attorney, agent,
or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent, or expert witness, the adjudicative officer shall
consider the following:
(1) If the attorney, agent, or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceedings; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project, or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.8 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an increase in the cost of living or by special
circumstances (such as limited availability of attorneys qualified to
handle certain types of proceedings), the Department may adopt
regulations providing that attorney fees may be awarded at a rate higher
than the ceiling set forth in 18.7(b) in some or all of the types of
proceedings covered by this part. The Department will conduct any
rulemaking proceedings for this purpose under the informal rulemaking
procedures of the Administrative Procedure Act.
(b) Any person may file with the Department a petition for rulemaking
to increase the maximum rate for attorney fees. The petition should be
sent to the General Counsel, Department of Commerce, 14th Street and
Constitution Avenue, Room 5870, Washington, D.C. 20230. The petition
should identify the rate the petitioner believes the Department should
establish and the types of proceedings in which the rate should be used.
It should also explain fully the reasons why higher rate is warranted.
The Department will respond to the petition within 60 days after it is
filed, by initiating a rulemaking proceeding, denying the petition, or
taking other appropriate action.
15 CFR 18.9 Awards against other agencies.
If an applicant is entitled to an award because it prevailed over
another agency of the United States that participated in a proceeding
before the Department and took a position that was not substantially
justified, the award or an appropriate portion of the award shall be
made against that agency.
15 CFR 18.10 Delegations of authority.
The Secretary delegates to the General Counsel the authority to take
final action on matters pertaining to the Act.
15 CFR 18.10 Information Required from Applicants
15 CFR 18.11 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the Department or other agency in the
proceeding that the applicant alleges was not substantially justified.
Unless the applicant is an individual, the application shall also state
the number of employees of the applicant and describe briefly the type
and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)), or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) and
includes a copy of its charter or articles of incorporation.
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the adjudicative officer to consider in determining
whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of
perjury that the information provided in the application is true and
correct.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.12 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in 18.5(f) of this part) when the proceeding was initiated.
Unless regulations issued by a component of the Department establish
particular requirements, the exhibit may be in any form convenient to
the applicant that provides full disclosure of the applicant's and its
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this part. The
adjudicative officer may require an applicant to file additional
information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure may submit
that portion of the exhibit directly to the adjudicative officer in a
sealed envelope labeled ''Confidential Financial Information,''
accompanied by a motion to withhold the information from public
disclosure. The motion shall describe the information sought to be
withheld and explain, in detail, why it falls within one or more of the
specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the
information would adeversely affect the applicant, and why disclosure is
not required in the public interest. The material in question shall be
served on counsel representing the agency against which the applicant
seeks an award, but need not be served on any other party to the
proceeding. If the adjudicative officer finds that the information
should not be withheld from disclosure, it shall be placed in the public
record of the proceeding. Otherwise, any request to inspect or copy the
exhibit shall be disposed of in accordance with the Department's
established procedures under the Freedom of Information Act (15 CFR Part
4).
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.13 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project, or similar matter for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceeding
by each individual, a description of the specific services performed,
the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. The adjudicative officer may require the
applicant to provide vouchers, receipts, or other substantiation for any
expenses claimed.
15 CFR 18.14 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding or in a significant and discrete substantive portion
of the proceeding, but in no case later than 30 days after the
Department's final disposition of the proceeding.
(b) For purposes of this rule, final disposition means the date on
which a decision or order disposing of the merits of the proceeding or
any other complete resolution of the proceeding, such as a settlement or
voluntary dismissal, becomes final and unappealable, both within the
agency and to the courts.
(c) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy. When the United States appeals the underlying
merits of an adversary adjudication to a court, no decision on an
application for fees and other expenses in connection with that
adversary adjudication shall be made until a final and unreviewable
decision is rendered by the court on the appeal or until the underlying
merits of the case have been finally determined pursuant to the appeal.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.14 Procedures for Considering Applications
15 CFR 18.15 Filing and service of documents.
Any application for an award or other pleading or document related to
an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding,
except as provided in 18.12(b) for confidential financial information.
15 CFR 18.16 Answer to application.
(a) Within 30 calendar days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing (an extension for an additional 30 days is available
as a matter of right) or files a statement of intent to negotiate under
paragraph (b) of this section, failure to file an answer within the 30
calendar day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted bu the adjudicative officer upon
request by agency counsel and the applicant.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of the agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under 18.20.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.17 Reply.
Within 15 calendar days after service of an answer, the applicant may
file a reply. If the reply is based on any alleged facts not already in
the record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
18.20.
15 CFR 18.18 Comments by other parties.
Any party to a proceeding other than the applicant and the agency
counsel may file comments on an application within 30 calendar days
after it is served or on an answer within 15 calendar days after it is
served. A commenting party may not participate further in proceedings
on the application unless the adjudicative officer determines that the
public interest requires such participation in order to permit full
exploration of matters raised in the comments.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.19 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded, in accordance with the
component agency's standard settlement procedure. If a prevailing party
and agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.20 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or agency counsel, or on his or her own initiative, the
adjudicative officer may order further proceedings, such as an informal
conference, oral argument, additional written submissions or, as to
issues other than substantial justification (such as the applicant's
eligibility or substantiation of fees and expenses), pertinent discovery
or an evidentiary hearing. Such further proceedings shall be held only
when necessary for full and fair resolution of the issues arising from
the application, and shall be conducted as promptly as possible.
Whether or not the position of the agency was substantially justified
shall be determined on the basis of the administrative record, as a
whole, which is made in the adversary adjudication for which fees and
other expenses are sought.
(b) A request that the adjudicative officer order further proceedings
under this section shall specifically identify the information sought or
the disputed issues and shall explain why the additional proceedings are
necessary to resolve the issues.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.21 Decision.
The adjudicative officer shall issue an initial decision on the
application within 30 calendar days after completion of proceedings on
the application. The initial decision of the adjudicative officer shall
include written findings and conclusions on the applicant's eligibility
and status as a prevailing party, and an explanation of the reasons for
any difference between the amount requested and the amount awarded. The
decision shall also include, if at issue, findings on whether the
Department's position was substantially justified, whether the applicant
unduly protracted the proceedings, or whether special circumstances make
an award unjust. If the applicant has sought an award against more than
one agency, the decision shall allocate responsibility for payment of
any award made among the agencies, and shall explain the reasons for the
allocation made.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988)
15 CFR 18.22 Agency review.
Either the applicant or agency counsel may file a petition for review
of the initial decision on the fee application, or the Department may
decide to review the decision on its own initiative. The petition must
be filed with the General Counsel, Office of the Assistant General
Counsel for Administration, Rm. 5882, U.S. Department of Commerce,
14th Street and Pennsylvania Avenue NW., Washington, DC 20230, not later
than 30 calendar days after the initial decision is issued. For
purposes of this section, a document will be considered filed with the
General Counsel as of the date of the postmark (or for government
penalty mail, as shown by a certificate of mailing), if mailed, or if
not mailed, as of the date actually delivered to the Office of General
Counsel. A petition for review must be accompanied by a full written
statement in support thereof, including a precise statement of why the
petitioner believes the initial decision should be reversed or modified,
and proof of service upon all parties. A response to the petition may
be filed by another party to the proceeding and must be filed with the
General Counsel at the above address not more than 30 calendar days
after the date of service of the petition for review. The General
Counsel may request any further submissions deemed helpful in resolving
the petition for review. If neither the applicant nor agency counsel
seeks review and the Department does not take review on its own
initiative, the initial decision on the application shall become a final
decision of the Department 30 calendar days after it is issued. Whether
to review a decision is a matter within the discretion of the General
Counsel. If review is taken, the General Counsel will issue the
Department's final decision on the application or remand the application
to the adjudicative officer for further proceedings. The standard of
review exercised by the General Counsel shall be that which was required
for the highest level of Departmental review which could have been
exercised on the underlying covered proceeding.
(53 FR 6799, Mar. 3, 1988)
15 CFR 18.23 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
15 CFR 18.24 Payment of award.
An applicant seeking payment of an award by the Department shall
submit a copy of the final decision granting the award, accompanied by a
certification that the applicant will not seek review of the decision in
the United States courts to the General Counsel, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Room 5870,
Washington, D.C. 20230. The Department will pay the amount awarded to
the applicant within 60 calendar days, unless judicial review of the
award or of the underlying decision of the adversary adjudication has
been sought by the applicant or any other party to the proceeding.
(47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988)
15 CFR 18.24 PART 19 -- (RESERVED)
15 CFR 18.24 PART 20 -- NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
15 CFR 18.24 Subpart A -- General
Sec.
20.1 The purpose of DOC's age discrimination regulations.
20.2 Programs to which these regulations apply.
20.3 Definitions.
15 CFR 18.24 Subpart B -- Standards for Determining Age Discrimination
20.4 Rules against age discrimination.
20.5 Exceptions to the rules.
20.6 Burden of proof.
15 CFR 18.24 Subpart C -- Responsibilities of DOC Recipients
20.7 General responsibilities.
20.8 Notice to subrecipients.
20.9 Information requirements.
15 CFR 18.24 Subpart D -- Investigation, Conciliation, and Enforcement
Procedures
20.10 Compliance reviews.
20.11 Complaints.
20.12 Mediation.
20.13 Investigation.
20.14 Prohibition against intimidation or retaliation.
20.15 Compliance procedure.
20.16 Hearings, decisions, post-termination proceedings.
20.17 Remedial action by recipients.
20.18 Alternative funds disbursal procedure.
20.19 Private lawsuits after exhaustion of administrative remedies.
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.
sec. 6101 et seq. and the government-wide regulations implementing the
Act, 45 CFR Part 90.
Source: 51 FR 28926, Aug. 13, 1986, unless otherwise noted.
15 CFR 18.24 Subpart A -- General
15 CFR 20.1 The purpose of DOC's age discrimination regulations.
The purpose of these regulations is to set out DOC's policies and
procedures under the Age Discrimination Act of 1975 and the general age
discrimination regulations at 45 CFR Part 90. The Act and the general
regulations prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act and the
general regulations permit federally assisted programs and activities,
and recipients of Federal funds, to continue to use age distinctions and
factors other than age which meet the requirements of the Act and its
implementing regulations.
15 CFR 20.2 Programs to which these regulations apply.
(a) The Act and these regulations apply to each DOC recipient and to
each program or activity operated by the recipient which receives or
benefits from Federal financial assistance provided by any entity of
DOC.
(b) The Act and these regulations do not apply to:
(1) An age distinction contained in that part of a Federal, State, or
local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in
age-related terms.
(2) Any employment practice or any employer, employment agency, labor
organization, or any labor-management joint apprenticeship training
program, except for any program or activity receiving Federal financial
assistance for public service employment.
15 CFR 20.3 Definitions.
As used in these regulations, the following terms are defined as
follows:
(a) Act means the Age Discrimination Act of 1975, as amended (Title
III of Pub. L. 94-135).
(b) Action means any act, activity, policy, rule, standard, or method
of administration; or the use of any policy, rule, standard, or method
of administration.
(c) Age means how old a person is, or the number of years from the
date of a person's birth.
(d) Age distinction means any action using age or an age-related
term.
(e) Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example: ''children,'' ''adult,''
''older persons,'' but not ''student'').
(f) Agency means a Federal department or agency that is empowered to
extend financial assistance.
(g) DOC means the U.S. Department of Commerce.
(h) Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
the agency provides or otherwise makes available assistance in the form
of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of property,
including:
(i) Transfers or leases of property for less than fair market value
or for reduced considerations; and
(ii) Proceeds from a subsequent transfer or lease of property if the
Federal share of its fair market value is not returned to the Federal
Government.
(i) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(j) Recipient means any State or its political subdivision, any
instrumentality of a State or its political sub-division, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended, directly or
through another recipient. Recipient includes any successor, assignee,
or transferee, but excludes the ultimate beneficiary of the assistance.
(k) Secretary means the Secretary of Commerce or his or her designee.
(l) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute, or local statute
or ordinance adopted by an elected, general purpose legislative body.
(m) Subrecipient means any of the entities in the definition of
''recipient'' to which a recipient extends or passes on Federal
financial assistance. A subrecipient is generally regarded as a
recipient of Federal financial assistance and has all the duties of a
recipient in these regulations.
(n) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Canal Zone, the Northern Marianas, and the territories and possessions
of the United States.
15 CFR 20.3 Subpart B -- Standards for Determining Age Discrimination
15 CFR 20.4 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in 20.5.
(a) General rule: No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving
Federal financial assistance.
(b) Specific rules: A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance, or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(c) The specific forms of age discrimination listed in paragaph (b)
of this section do not necessarily constitute a complete list.
(d) If a recipient operating a program provides special benefits to
the elderly or to children, such use of age distinctions shall be
presumed to be necessary to the normal operation of the program,
notwithstanding the provisions of 20.5.
15 CFR 20.5 Exceptions to the rules.
(a) Normal operations or statutory objective of any program or
activity. A recipient is permitted to take an action otherwise
prohibited by 20.4 if the action reasonably considers age as a factor
necessary to the normal operation or the achievement of any statutory
objective of a program or activity. An action meets this standard if:
(1) Age is used as a measure or approximation of one or more other
characteristics; and
(2) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective or the program or activity; and
(3) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(4) The other characteristic(s) are impractical to measure directly
on an individual bases.
(b) Reasonable factors other than age. A recipient is permitted to
take an action otherwise prohibited by 20.4 which is based on a factor
other than age, even though that action may have a disproportionate
effect on persons of different ages. An action may be based on a factor
other than age only if the factor bears a direct and substantial
relationship to the normal operation of the program or activity or to
the achievement of a statutory objective.
15 CFR 20.6 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in 20.5 is on the recipient of Federal
financial assistance.
15 CFR 20.6 Subpart C -- Responsibilities of DOC Recipients
15 CFR 20.7 General responsibilities.
Each DOC recipient has primary responsibility to ensure that its
programs and activities are in compliance with the Act, the general
regulations, and these regulations, and shall take steps to eliminate
violation of the Act.
(a) Each DOC recipient will provide an assurance that the program for
which it is receiving Federal financial assistance will be conducted in
compliance with all requirements for the Act and these and other DOC
regulations. A recipient also has responsibility to maintain records,
provide information, and to afford DOC reasonable access to its records
and facilities to the extent necessary to determine whether it is in
compliance with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) To assess the
recipient's compliance with the Act, DOC may, as part of a compliance
review under 20.10 or a complaint investigation under 20.11, require a
recipient employing the equivalent or 15 or more employees, to complete,
in a manner specified by the responsible Department official, a written
self-evaluation of any age distinction imposed in its program or
activity receiving Federal financial assistance from DOC.
(2) Whenever an assessment indicates a violation of the Act and the
DOC regulations, the recipient shall take corrective action.
15 CFR 20.8 Notice to subrecipients.
Where a recipient passes on Federal financial assistant from DOC to
subrecipients, the recipient shall give subrecipients written notice of
their obligations under the Act and these regulations.
15 CFR 20.9 Information requirements.
Upon DOC's request, each recipient shall provide access and make
information available for DOC to determine whether the recipient is
complying with the Act and these regulations.
15 CFR 20.9 Subpart D -- Investigation, Conciliation, and Enforcement Procedures
15 CFR 20.10 Compliance reviews.
(a) DOC may conduct compliance reviews and pre-award reviews or use
other similar procedures that will permit it to investigate and correct
violations of the Act and these regulations. DOC may conduct such
review even in the absence of a complaint against a recipient. The
review may be as comprehensive as necessary to determine whether a
violation of the Act and these regulations has occurred.
(b) If a compliance review of pre-award review indicates a violation
of the Act or these regulations, DOC will attempt to achieve voluntary
compliance with the Act. If voluntary compliance cannot be achieved,
DOC will arrange for enforcement as described in 20.15.
15 CFR 20.11 Complaints.
(a) Any person, individually, or as a member of a class, or on behalf
of others, may file a complaint with DOC alleging discrimination
prohibited by the Act or these regulations based on an action occurring
on or after July 1, 1979. A complainant shall file a complaint within
180 days from the date the complainant first had knowledge of the
alleged act of discrimination. However, for good cause shown, DOC may
extend this time limit.
(b) DOC will attempt to facilitate the filing of complaints wherever
possible, including taking the following measures:
(1) Accepting as a sufficient complaint, any written statement which:
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation; describes generally the action or
practice complained of; and is signed by the complainant;
(2) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint;
(3) Considering as the filing date, the date on which a complaint is
sufficient to be processed;
(4) Notifiying the complainant and the recipient of their rights and
obligations under the compliant procedure, including the right to have a
representative at all stages of the process;
(5) Notifying the complainant and the recipient (or their
representatives) of their right to contact DOC for information and
assistance regarding the complaint resolution process.
(c) DOC will return to the complainant any complaint outside the
jurisdiction of these regulations, and will state the reason(s) why it
is outside the jurisdiction of these regulations.
15 CFR 20.12 Mediation.
(a) DOC will refer to a mediation service designated by the Secretary
all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and these regulations,
unless the age distinction complained of is clearly within an exception;
and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or to
make an informed judgment that an agreement is not possible.
(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and the recipient sign it. The mediator shall send a copy
of the agreement to DOC. DOC will take no further action on the
complaint unless the complainant or the recipient fails to comply with
the agreement.
(d) The mediator is required to protect the confidentiality of all
information obtained in the course of the mediation process. No
mediator shall testify in any adjudicative proceeding, produce any
document, or otherwise disclose any information obtained, in the course
of the mediation process without prior approval of the head or the
mediation service.
(e) The mediation will proceed for a maximum of 60 days after a
complaint is filed with DOC. Mediation ends if:
(1) 60 days elapse from the time DOC receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached;
or
(3) Prior to the end of that 60-day period, the mediator determines
that an agreement cannot be reached.
(f) The mediator shall return unresolved complaints to DOC.
15 CFR 20.13 Investigation.
(a) Informal investigation:
(1) DOC will investigate complaints that are unresolved after
mediatioin or are reopended because of a violation of a mediation
agreement.
(2) As part of the initial investigation, DOC will use informal
factfinding methods, including joint or separate discussions with the
complainant and recipient, to establish the facts and, if possible,
settle the complaint on terms that are mutually agreeable to the
parties. DOC may seek the assistance of any involved State program
agency.
(3) DOC will put any agreement in writing and have it signed by the
parties and an authorized offical at DOC.
(4) The settlement shall not affect the operation of any other
enforcement effort of DOC, including compliance reviews and
investigation or other complaints which may involve the recipient.
(5) The settlement is not a finding of discrimination against a
recipient.
(b) Formal investigation: If DOC cannot resolve the complaint
through informal investigation, it will begin to develop formal findings
through further investigation of the complaint. If the investigation
indicates a violation of these regulations, DOC will attempt to obtain
voluntary compliance. If DOC cannot obtain voluntary compliance, it
will begin enforcement as described in 8a.15.
15 CFR 20.14 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by the Act or these
regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of DOC's investigation, conciliation, and enforcement process.
15 CFR 20.15 Compliance procedure.
(a) DOC may enforce the Act and these regulations by:
(1) Terminating the Federal financial assistance to the recipient
under the program or activity found to have violated the Act or these
regulations. The determination of the recipient's violation may be made
only after a recipient has had an opportunity for a hearing on the
record before an administrative law judge. If a case is settled during
mediation, or prior to hearing, Federal financial assistance to the
program will not be terminated.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce
any rights of the United States or obligations of the recipient created
by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or
local government agency that will have the effect of correcting a
violation of the Act or these regulations.
(b) DOC will limit any termination under this section to the
particular recipient and particular program or activity or part of such
program and activity DOC finds in violation of these regulations. DOC
will not base any part of a termination on a finding with respect to any
program or activity of the recipient which does not receive Federal
financial assistance from DOC.
(c) DOC will take no action under paragraph (a) until:
(1) The head of the organization providing the financial assistance
has advised the recipient of its failure to comply with the Act and
these regulations and has determined that voluntary compliance cannot be
obtained.
(2) Thirty days have elapsed after the Secretary has sent a written
report of the circumstances and grounds of the action to the committees
of the Congress having legislative jurisdiction over the Federal program
or activity involved. The Secretary will file a report whenever any
action is taken under paragraph (a).
(d) DOC also may defer granting new Federal financial assistance to a
recipient when a hearing under 20.16 is initiated.
(1) New Federal financial assistance from DOC includes all assistance
for which DOC requires an application or approval, including renewal or
continuation of existing activities, or authorization of new activities,
during the deferral period. New Federal financial assistance from DOC
does not include increases in funding as a result of changed computation
of formula awards or assistance approved prior to the beginning of a
hearing under 20.16.
(2) DOC will not begin a deferral until the recipient has received a
notice of an opportunity for a hearing under 20.16. DOC will not
continue a deferral for more than 60 days unless a hearing has begun
within that time, or the time for beginning the hearing has been
extended by mutual consent of the recipient and the head of the
organization providing Federal financial assistance. DOC will not
continue a deferral for more than 30 days after the close of the
hearing, unless the hearing results in a finding against the recipient.
(3) DOC will limit any deferral to the particular recipient and
particular program or activity or part of such program or activity DOC
finds in violation of these regulations. DOC will not base any part of
a deferral on a finding with respect to any program or activity of the
recipient which does not, and would not in connection with the new
funds, receive Federal financial assistance for DOC.
15 CFR 20.16 Hearings, decisions, post-termination proceedings.
Certain DOC procedural provisions applicable to Title VI of the Civil
Rights Act of 1964 apply to DOC enforcement of these regulations. They
are found in 15 CFR Part 8, 8.12 and 8.13.
15 CFR 20.17 Remedial action by recipients.
(a) Where DOC finds that a recipient has discriminated on the basis
of age, the recipient shall take any remedial action that DOC may
require to overcome the effects of the discrimination. If another
recipient exercises control over the recipient that has discriminated,
DOC may require both recipients to take remedial action.
(b) Even in the absence of a finding of discrimination, a recipient
may take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity
on the basis of age.
15 CFR 20.18 Alternative funds disbursal procedure.
(a) When, under the provisions of these regulations, DOC terminates
the funding of a recipient, the Secretary may, using undisbursed funds
from the terminated award, make a new award to an alternate recipient,
i.e. any public or non-profit private organization or agency, or State
or political subdivision of the State.
(b) The Secretary will require any alternate recipient to
demonstrate:
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or activity.
15 CFR 20.19 Private lawsuits after exhaustion of administrative
remedies.
(a) A complainant may file a civil action following the exhuastion of
administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and DOC has made no finding with regard to the complaint; or
(2) DOC issues any finding in favor of the recipient.
(b) If DOC fails to make a finding within 180 days or issues a
finding in favor of recipient, DOC shall:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring civil action
for injunctive relief; and
(3) Inform the complainant that:
(i) The complainant may bring a civil action only in a United States
district court for the district in which the recipient is located or
transacts business;
(ii) A complainant prevailing in a civil action has the right to be
awarded the costs of the action, including reasonable attorney's fees,
but that the complainant must demand these costs in the complaint;
(iii) Before commencing the action, the complainant shall give 30
days notice by registered mail to the Secretary, the Attorney General of
the United States, and the recipient;
(iv) The notice shall contain the alleged violation of the Act, the
relief requested, the court in which the complainant is bringing the
action, and whether or not attorney's fees are demanded in the event the
complainant prevails; and
(v) The complainant may not bring an action if the same alleged
violation of the Act by the same recipient is the subject of a pending
action in any court of the United States.
15 CFR 20.19 PART 21 -- ADMINISTRATIVE OFFSET
Sec.
21.1 Definitions.
21.2 Purpose and scope.
21.3 Department responsibilities.
21.4 Notification requirements before offset.
21.5 Exceptions to notification requirements.
21.6 Written agreement to repay debt.
21.7 Review of Department records related to the debt.
21.8 Review within the Department of a determination of indebtedness.
21.9 Types of reviews.
21.10 Review procedures.
21.11 Determination of indebtedness.
21.12 Coordinating administrative offset within the Department and
with other Federal agencies.
21.13 Procedures for administrative offset: single debts.
21.14 Procedures for administrative offset: multiple debts.
21.15 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
21.16 Collection against a judgment.
21.17 Liquidation of collateral.
21.18 Collection in installments.
21.19 Additional administrative collection action.
Authority: 31 U.S.C. 3716; 4 CFR Part 102.
Source: 51 FR 47005, Dec. 30, 1986, unless otherwise noted.
15 CFR 21.1 Definitions.
For purposes of this subpart:
(a) The term administrative offset means satisfying a debt by
withholding of money payable by the Department to, or held by the
Department on behalf of a person, to satisfy a debt owed the Federal
Government by that person.
(b) The term person includes individuals, businesses, organizations
and other entities, but does not include any agency of the United
States, or any State or local government.
(c) The terms claim and debt are deemed synonymous and
interchangeable. They refer to an amount of money or property which has
been determined by an appropriate agency official to be owed to the
United States from any person, organization, or entity, except another
Federal agency, a State or local government, or Indian Tribal
Government.
(d) Agency means:
(1) An Executive department, military department, Government
corporation, or independent establishment as defined in 5 U.S.C. 101,
102, 103, or 104, respectively.
(2) The United States Postal Service; or
(3) The Postal Rate Commission.
(e) Debtor means the same as ''person.''
(f) Department means the Department of Commerce.
(g) Secretary means the Secretary of the Department of Commerce.
(h) Assistant Secretary for Administration means the Assistant
Secretary for Administration of the Department of Commerce.
(i) United States includes an ''agency'' of the United States.
(j) Waiver means the cancellation, remission, forgiveness, or
non-recovery of a debt allegedly owed by a person to the United States.
(k) Departmental Unit means an individual operating or administrative
component within the Department of Commerce.
(l) Departmental Unit Head means the head of an individual operating
or administrative component within the Department of Commerce
responsible for debt collection.
(m) Notice of Intent means a demand notice sent by the Department to
the debtor indicating not only the amount due, but also the Department's
intent to offset all or some of the amount due from other source(s) of
Federal payment(s) that may be due the debtor.
(n) Workout Group means Departmental debt collection specialist(s)
assigned to collection of a delinquent debt when the claim is 30 or more
days past due.
15 CFR 21.2 Purpose and scope.
(a) The regulations in this subpart establish procedures to implement
section 10 of the Debt Collection Act of 1982 (Pub. L. 97-365), 31
U.S.C. 3716. Among other things, this statute authorizes the heads of
each agency to collect a claim arising under an agency program by means
of administrative offset, except that no claim may be collected by such
means if outstanding for more than 10 years after the agency's right to
collect the debt first accrued, unless facts material to the
Government's right to collect the debt were not known and could not
reasonably have been known by the official or officials of the
Government who were charged with the responsibility to discover and
collect such debts.
(b) Unless otherwise provided for by statute, these regulations do
not apply to an agency of the United States, a State government, or unit
of general local government. In addition, these procedures do not apply
to debts arising under the Internal Revenue Code (26 U.S.C. 1-9602),
the Social Security Act (42 U.S.C. 301-1397f), the tariff laws of the
United States; or to contracts covered by the Contract Dispute Act of
1978 (41 U.S.C. 601-613).
(c) The regulations cover debts owed to the United States from any
person, organization or entity, including debts owed by current and
former Department employee, or other Federal employees, while employed
in one capacity or another by the Department of Commerce.
(d) Debts or payments which are not subject to administrative offset
under 31 U.S.C. 3716, unless otherwise provided for by contract or law,
may be collected by administrative offset under the common law or other
applicable statutory authority.
(e) Departmental unit head (and designees) will use administrative
offset to collect delinquent claims which are certain in amount in every
instance and which collection is determined to be feasible and not
prohibited by law.
15 CFR 21.3 Department responsibilities.
(a) Each Departmental unit which has delinquent debts owed under its
program is responsible for collecting its claims by means of
administrative offset when appropriate and best suited to further and
protect all the Government's interests.
(b) The Departmental unit head (or designee) will determine the
feasibility and cost effectiveness of collection by administrative
offset on a case-by-case basis, exercising sound discretion in pursuing
such offsets, and will consider the following:
(1) The debtor's financial condition;
(2) Whether offset would substantially interfere with or defeat the
purposes of the Federal program authorizing the payments against which
offset is comtemplated; and
(3) Whether offset best serves to further and protect all of the
interests of the United States.
(c) Before advising the debtor that the delinquent debt will be
subject to administrative offset, the Departmental unit workout group
shall review the claim and determine that the debt is valid and overdue.
In the case where a debt arises under the programs of two or more
Department of Commerce units, or in such other instances as the
Assistant Secretary for Administration or his/her designee may deem
appropriate, the Assistant Secretary, or his or her designee, may
determine which Departmental unit workout group or official(s) shall
have responsibility for carrying out the provisions of this subpart.
(d) Administrative offset shall be considered by Department units
only after attempting to collect a claim under section 3(a) of the
Federal Claims Collection Act of 1966, as amended; except that no claim
under this Act that has been outstanding for more than 10 years after
the debt first accrued may be collected by means of administrative
offset, unless facts, material to the right to collect the debt, were
not known and could not reasonably have been known by the official of
the Department who was charged with the responsibility to discover and
collect such debts. When the debt first accrued should be determined
according to existing laws regarding the accrual of debts, such as under
28 U.S.C. 2415.
15 CFR 21.4 Notification requirements before offset.
A debt is considered delinquent by the Department if it is not paid
within 15 days of the due date, or if there is no due date, within 30
days of the billing date.
(a) The Departmental unit head (and designees) responsible for
carrying out the provisions of this subpart with respect to the debt
shall ensure that appropriate written demands are sent to the debtor in
terms which inform the debtor of the consequences of failure to
cooperate in payment of the debt. The first demand letter should be
sent within ten (10) days after the date the debt becomes delinquent. A
total of three progressively stronger written demand letters, at not
more than 30 calendar day intervals, will normally be made unless (1) a
response to the first or second demand indicates that a further demand
would be futile; (2) the debtor's response does not require any or
immediate rebuttal; and/or (3) the bureau determines to pursue offset
under the procedures specified in 4 CFR 102.3, Collection by
Administrative Offset. In determining the timing of the demand letters,
Departmental unit heads should give due regard to the need to act
promptly; so as a general rule, if it is necessary to refer the debt to
the Department of Justice for action, such referral can be made within
one year of the final determination of the facts and the amount of the
debt. When Departmental unit heads (and designees) deem it appropriate
to protect the Government's interests (for example, to prevent the
statute of limitations, 28 U.S.C. 2415, from expiring), written demand
for payment may be preceded by other appropriate collection actions
(also see 21.10(c)).
(b) The Department official responsible for collection of the debt
(generally an accounting or finance officer) shall ensure that an
initial written demand notice is sent to the debtor, informing such
debtor of:
(1) The amount and basis for the indebtedness and whatever rights the
debtor may have to seek review within the Department;
(2) The applicable standards for assessing interest, penalties, and
administrative costs (4 CFR 102.13);
(3) That the debtor has a right to inspect and copy Department
records related to the debt, as determined by responsible Departmental
official(s), and that such request to inspect and copy must be
postmarked or received by the Department no later than 30 days after the
date of the (first) demand letter;
(4) The name, mailing address, and telephone number of the Department
workout group employee who can provide a full explanation of the claim
and answer all related questions, as well as explain procedures to the
debtor for inspecting and copying records related to the debt.
(c) The responsible Department officials shall exercise due care to
insure that demand letters are mailed or hand delivered on the same day
that they are actually dated. If evidence suggests that the debtor is
no longer located at the address of record, reasonable action shall be
taken by the Departmental unit workout group to obtain a current
address, including skip-trace assistance from the Internal Revenue
Service and/or private sector credit reporting bureaus.
(d) Where applicable, the Departmental unit workout group must inform
the debtor in a second demand letter, (Notice of Intent) of:
(1) The nature and amount of the debt;
(2) That the Department intends to collect the debt by administrative
offset until the debt and all accumulated interest and other charges are
paid in full;
(3) That the debtor has a right to obtain review within the
Department of the initial determination of indebtedness, and that such
request to have a review of the basis of indebtedness must be postmarked
or received by the Department no later than 30 days after the date of
the second demand letter (Notice of Intent); and
(4) That the debtor may enter into a written agreement with the
responsible Department official(s) to repay the debt if such a request
is made and received by the Department no later than 30 days after the
date of the second demand letter (Notice of Intent).
If the sum of the proposed offset does not fully cover the amount of
the debt owed, the Departmental unit workout group shall also include in
this second demand letter (Notice of Intent) the notice provisions to
debtors required by the Debt Collection Act of 1982, and other
regulations of the Department, pertaining to disclosure of the
delinquent debt to credit reporting agencies, referral to private
collection agencies, salary offset, possible Internal Revenue Service
offset of tax refunds, and referral of the debt to the Justice
Department for action to the extent inclusion of such is appropriate and
practical.
(5) That if payment or a request for review is not received within
the 30-day period, the offset process will be initiated.
15 CFR 21.5 Exceptions to notification requirements.
(a) In cases where the notice specified in 21.4 has previously been
provided to the debtor in connection with the same debt under some other
proceeding, such as a final audit resolution determination, the
Department is not required to duplicate those requirements before
effecting administrative offset.
(b) If the time before payment is to be made to the debtor does not
reasonably permit the completion of the procedures specified in 21.4,
and failure to take offset would substantially prejudice the
Government's ability to collect the debt, then administrative offset
action will be taken without notification. The offset will be promptly
followed by the completion of the procedures specified in 21.4 (also
see 21.10(c)).
15 CFR 21.6 Written agreement to repay debt.
(a) A debtor will be provided with an opportunity to enter into a
written agreement with the responsible Departmental official(s) to repay
the debt owed if the following conditions are met and if specific
conditions exist that limit his or her ability to immediately repay the
debt.
(1) Notification by debtor. The debtor may, in response to the first
written demand or Notice of Intent, propose a written agreement for
delayed lump sum or installment payments to repay the debt as an
alternative to administrative offset. Any debtor who wishes to do this
must submit a proposed written agreement signed by the debtor to repay
the debt, including interest, penalties, and administrative costs
determined by the Department as due. This proposed written agreement
must be received by the workout group individual specified in
21.4(b)(4) within 60 calendar days of the date of the Department's
initial written demand letter, or if in response to the Notice of
Intent, within 30 calendar days of the date of the Department's Notice
of Intent.
(2) Department response. In response to timely notification by the
debtor as described in paragraph (a)(1) of this section, the
Departmental unit head (or designee) will notify the debtor within 30
calendar days whether the debtor's proposed written agreement for
repayment is acceptable. It is within the discretion of the
Departmental unit head (or designee) to accept a repayment agreement
instead of proceeding by offset. However, if the debt is delinquent and
the debtor has not disputed its existence or amount, the Departmental
unit head (or designee) should accept a repayment agreement instead of
offset only if the debtor is able to establish that offset would result
in undue financial hardship or would be against equity and good
conscience. Before accepting a repayment agreement, the Departmental
unit head (or designee) will also consider factors such as the financial
statements provided by the debtor, the amount of the debt, the length of
the proposed repayment period (generally not to exceed 3 years), whether
the debtor is willing to sign a confess-judgment note or give
collateral, and past dealings with the debtor. In making this
determination, the Departmental unit head (or designee) will balance the
Department's interest in collecting the debt against the financial
hardship to the debtor (see 21.18). A Departmental unit head (or
designee) may deem a repayment plan to be abrogated if the debtor
should, after the repayment plan is signed, fail to comply with the
terms of the plan.
15 CFR 21.7 Review of Department records related to the debt.
(a) Notification by debtor. A debtor who intends to inspect or copy
Department records related to the debt must send a letter to the
Departmental unit workout group employee specified in 21.4(b)(4)
stating his or her intentions. The letter must be postmarked or
received by the Department within 30 calendar days of the date of the
Department's first demand letter.
(b) Department response. In response to timely notification by the
debtor as described in paragraph (a) of this section, the Departmental
unit workout group will notify the debtor within 10 days of the request
of the location and time when the debtor may inspect or copy agency
records related to the debt, as well as provide the debtor with the name
and telephone number of the contact person who may provide assistance to
the debtor for ensuring that copies are made of all appropriate
documents related to the debt. The debtor may also request that such
records be copied and mailed. The responsible Department official(s)
will provide access to records within 15 days from the date of the
debtor's request for access, or mail the records to the debtor within
such time period. Mailing of records by Departmental official(s) will
be by certified or registered mail. The debtor will have 25 days from
the date of access or 30 days from the date the records were mailed, to
review the records and pay the debt or to petition the Department of a
review of the determination of indebtedness.
15 CFR 21.8 Review within the Department of a determination of
indebtedness.
(a) Notification by debtor. A debtor who receives an initial demand
for payment under the procedures, or a Notice of Intent (see 21.4(d)),
has the right to request Department review of the determination of
indebtedness. To exercises this right, the debtor must send a letter
requesting review to the Departmental unit workout group individual
identified in 21.4(b)(4). The letter must explain why the debtor seeks
review and must be postmarked within 60 calendar days of the date of the
first demand letter, (or 30 days from the Notice of Intent), or if a
request has been made by the debtor to copy or have relevant records
mailed, within the calendar-day time period provided in 21.7(b), above.
(b) Department response. In response to a timely request for review
of the initial determination of indebtedness, the Departmental unit head
(or designee) will notify the debtor whether review will be by (1) oral
hearing, or (2) by administrative review of the record. The notice to
the debtor will include the procedures (see 21.11) used by Departmental
officials for administrative review of the record, or will include
information on the date, location and procedures to be used if review is
by an oral hearing.
15 CFR 21.9 Types of reviews.
The Department will provide the debtor with an opportunity for an
oral hearing, or an administrative review of the documentation relating
to the debt, under the following conditions.
(a) Oral hearing. The Departmental unit head (or designee) will
provide the debtor with a reasonable opportunity for hearing if:
(1) An applicable statute authorizes or requires the Department to
consider waiver of the indebtedness, the debtor requests waiver of the
indebtedness involved, and the waiver determination turns on credibility
or veracity; or
(2) The debtor requests reconsideration of the debt and the
Departmental unit head (or designee) determines that the question of the
indebtedness cannot be resolved by review of the documentary evidence.
An oral hearing need not be a formal (evidentiary type) hearing.
However, hearing officials should carefully document all significant
matters discussed at the hearing.
(b) Administrative review of written record. Unless the Departmental
unit head (or designee) determines that an oral hearing is required (see
paragraph (a) of this section), the unit head (or designee) will provide
for a review of the written record(s) (a review of the documentary
evidence related to the debt, in the form of a ''paper hearing'').
15 CFR 21.10 Review procedures.
(a) The oral hearing will be conducted as follows:
(1) The hearing official will take necessary steps to ensure that the
hearing is conducted in a fair and expeditious manner. If necessary,
the hearing officer may administer oaths of affirmation.
(2) The hearing official need not use the formal rules of evidence
with regard to admissibility of evidence or the use of evidence once
admitted. However, parties may object to clearly irrelevant material.
(3) The hearing official will record all significant matters
discussed at the hearing. There will be no ''official'' record or
transcript provided for these hearings.
(4) A debtor may represent himself or herself or may be represented
by an attorney or other person. The Department will be represented by
the General Counsel or his designee.
(5) The General Counsel (or designee) will proceed first by
presenting evidence on the relevant issues. The debtor then presents
his or her evidence regarding these issues. The General Counsel then
may offer evidence to rebut or clarify the evidence introduced by the
debtor.
(b) Administrative review of the record: The Departmental unit head
(or designee) will designate an official of the Department as hearing
official who will review administrative determinations of indebtedness
which are not reviewable under criteria provided in 21.9(a) for
justifying an oral hearing. The hearing official will review all
material related to the debt which is in the possession of the
Department. The hearing official will make a determination based upon a
review of this written record, which may include a request for
reconsideration of the determination of indebtedness, or such other
relevant material submitted by the debtor.
(c) The Department may effect an administrative offset against a
payment to be made to a debtor prior to the completion of any of the due
process procedures required by this section, if failure to take the
offset would substantially prejudice the Department's ability to collect
the debt. For example, if the time before the payment is to be made to
the debtor by another Federal department or agency would not reasonably
permit the completion of due process procedures, the offset may be
accomplished by the Department. Such offset prior to completion of due
process review hearing will be promptly followed by the completion of
review and decision by the hearing official on the validity of the debt.
Amounts recovered by offset in these instances, but later found not
owed to the agency, will be promptly refunded.
15 CFR 21.11 Determination of indebtedness.
(a) Following the hearing or the review of the record, the hearing
official will issue a written decision which includes the supporting
rationale for the decision. The decision of the hearing official is the
Department unit's final action with regard to the particular
administrative offset.
(b) Copies of the hearing official's decision will be distributed to
the General Counsel (or designee) for the Department, the Director of
the Department's Office of Finance and Federal Assistance, the
appropriate Departmental unit accounting/finance officer, the debtor and
the debtor's attorney or other representative, if applicable.
(c) If appropriate, this decision shall inform the debtor of the
scheduled date on or after which administrative offset will begin. The
decision shall also, if appropriate, indicate any changes in the
information to the extent such information differs from that provided in
the initial notification under 21.4.
15 CFR 21.12 Coordinating administrative offset within the Department
and with other Federal agencies.
Departmental units will cooperate with other Federal departments and
agencies in effecting collection by administrative offset. Whenever
possible, Departmental units should comply with requests from within the
Department and from other Federal agencies to initiate administrative
offset procedures to collect debts owed the United States, unless the
requesting office or agency has not complied with the Federal Claims
Collections Standards, or the agency's implementing regulations, or the
request would otherwise be contrary to law or the best interests of the
United States.
(a) When the Department is owed the debt. When the Department is
owed a debt, but another Federal agency is responsible for making the
payment to the debtor against which administrative offset is sought, the
other agency will not initiate the requested administrative offset until
the Department provides responsible officials at that agency with a
written certification that the debtor owes the Department a debt
(including the amount and basis for the debt and the due date of the
payment) and that the Department has complied with the applicable
provisions of Part 102, ''Standards for the Administrative Collection of
Claims,'' of the Federal Claims Collection Standards, as well as the
Department's implementing regulations on administrative offsets.
(b) When another agency is owed the debt. The Department may
administratively offset money it owes to a person who is indebted to
another agency if requested to do so by that agency. Such a request
must be accompanied by a certification by the requesting agency that the
person owes the debt (including the amount and basis for the debt) and
that the creditor agency has complied with the applicable Federal Claims
Collection Standards, as well as the agency implementing regulations on
administrative offsets. The request from another Federal agency for
Department cooperation in the offset should be sent to:
Director, Office of Finance and Federal Assistance, Room 6827,
Herbert C. Hoover Building, Washington, D.C. 20230
15 CFR 21.13 Procedures for administrative offset: single debts.
(a) Administrative offset will commence 31 days after the date of the
Notice of Intent, unless the debtor has requested a hearing (see 21.8)
or has entered into a repayment agreement (see 21.6).
(b) When there is review of the debt within the Department,
administrative offset will begin after the hearing officer's
determination has been issued under 21.11 and a copy of the
determination is received by the Departmental unit's accounting or
finance office, except for the provision provided in 21.10(c) when
immediate action is determined necessary to ensure the Department's
position in collection of the delinquent debt.
15 CFR 21.14 Procedures for administrative offset: multiple debts.
The Departmental units will follow the procedures identified in (
21.13) for the administrative offset of a single debt. However, when
collecting multiple debts by administrative offset, responsible
Departmental officials should apply the recovered amounts to those debts
in accordance with the best interests of the United States, as
determined by the facts and circumstances of the particular case, paying
special attention to applicable statutes of limitations.
15 CFR 21.15 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
(a) Unless otherwise prohibited by law, the Department may request
that monies which are due and payable to a debtor from the Civil Service
Retirement and Disability Fund be administratively offset in reasonable
amounts in order to collect debts owed to the United States by the
debtor. Such requests shall be made by the Departmental unit workout
officials to the appropriate officials of the Office of Personnel
Management (OPM) in accordance with their regulations and procedures.
(b) When making a request for administrative offset under paragraph
(a) of the section, the responsible workout group debt collection
official shall include a written certification that:
(1) The debtor owes the United States a debt, including the amount
and basis for the debt;
(2) The Department has complied with all applicable statutes,
regulations, and procedures of the Office of Personnel Management; and
(3) The Department has complied with the requirements of the
applicable provisions of the Federal Claims Collection Standards and
these regulations, including any required hearing or review.
(c) If a Departmental unit workout group decides to request
administrative offset under paragraph (a) of this section, the
responsible debt collection official should make the request as soon as
practical after completion of the applicable due process procedures so
the Office of Personnel Management may identify and ''flag'' the
debtor's account in anticipation of the time when the debtor becomes
eligible and requests to receive payments from the fund. This will
satisfy any requirement that offset be initiated prior to expiration of
the applicable statute of limitations. At such time as the debtor makes
a claim for payments from the fund, and if at least a year has elapsed
since the administrative offset request was originally made, the debtor
should be permitted to offer a satisfactory repayment plan in lieu of
offset upon establishing to the appropriate Departmental unit head (or
designee) that changed financial circumstances would render the offset
unjust.
(d) If the Department collects part or all of the debt by other means
before deductions are made or completed under paragraph (a) of this
section, the Department official responsible for collecting the debt
will act promptly to modify or terminate the agency's request for
administrative offset under paragraph (a) of this section.
(e) In accordance with procedures established by the Office of
Personnel Management, the Department may request an offset from the
Civil Service Retirement and Disability Fund prior to completion of due
process procedures.
15 CFR 21.16 Collection against a judgment.
Collection by administrative offset against a judgment obtained by a
debtor against the United States shall be accomplished in accordance
with 31 U.S.C. 3728.
15 CFR 21.17 Liquidation of collateral.
If the Department holds security or collateral which may be
liquidated through the exercise of a power of sale in the security
instrument, or a nonjudicial foreclosure, liquidation should be
accomplished by such procedures if the debtor fails to pay the debt
within a reasonable time after demand or pursuant to the contract of the
parties, unless the cost of disposing of the collateral would be
disproportionate to its value or special circumstances require judicial
foreclosure. The Department collection official should provide the
debtor with reasonable notice of the sale, an accounting of any surplus
proceeds, and any other procedures required by contract or law.
Collection from other sources, including liquidation of security or
collateral, is not a prerequisite to requiring payment by a surety or
insurance concern unless such action is expressly required by statute or
contract.
15 CFR 21.18 Collection in installments.
(a) Whenever feasible, and unless otherwise provided by law, debts
owed to the United States, together with interest, penalties, and
administrative costs should be collected in one lump sum. This is true
whether the debt is being collected by administrative offset or by
another method, including voluntary payment. However, if the debtor is
financially unable to pay the indebtedness in one lump sum, the
responsible Departmental official(s) may accept repayment in regular
installments (See 21.6). Prior to approving such repayments, financial
statements shall be required from the debtor who represents that he/she
is unable to pay the debt in one lump sum. A responsible Departmental
official who agrees to accept payment in regular installments should
obtain a legally enforceable written agreement from the debtor which
specifies all of the terms of the arrangement and which contains a
provision accelerating the debt in the event the debtor defaults. The
size and frequency of installment payments should bear a reasonable
relationship to the size of the debt and the debtor's ability to pay.
If possible, the installment payments should be sufficient in size and
frequency to liquidate the Government's claim in not more than three
years. Installment payments of less than $50 per month should be
accepted only if justifiable on the grounds of financial hardship or for
some other reasonable cause. If the debt is an unsecured claim for
administrative collection, attempts should be made to obtain an executed
confess-judgment note, comparable to the Department of Justice Form
USA-70a, from a debtor when the total amount of the deferred
installments will exceed $750. Such notes may be sought when an
unsecured obligation of a lesser amount is involved. When attempting to
obtain confess-judgment notes, Departmental units should provide their
debtors with written explanation of the consequences of signing the
note, and should maintain documentation sufficient to demonstrate that
the debtor has signed the note knowingly and voluntarily. Security for
deferred payments other than a confess-judgment note may be accepted in
appropriate cases. A Departmental units head (or designee) may accept
installment payments notwithstanding the refusal of a debtor to execute
a confess-judgment note or to give other security.
(b) If the debtor owes more than one debt and designates how a
voluntary installment payment is to be applied as among those debts,
that designation must be followed. If the debtor does not designate the
application of the payment, the Department debt collection official
should apply payments to the various debts in accordance with the best
interests of the United States, as determined by the facts and
circumstances of the particular case, paying special attention to
applicable statutes of limitations.
15 CFR 21.19 Additional administrative collection action.
Nothing contained in this subpart is intended to preclude the
utilization of any other administrative remedy which may be available.
15 CFR 21.19 PART 22 -- SALARY OFFSET
Sec.
22.1 Scope.
22.2 Definitions.
22.3 Pay subject to offset.
22.4 Determination of indebtedness.
22.5 Notice requirements before offset.
22.6 Request for hearing -- Prehearing submission(s).
22.7 Hearing procedures.
22.8 Written decision following a hearing.
22.9 Standards for determining extreme financial hardship.
22.10 Review of Departmental records related to the debt.
22.11 Coordinating offset with another Federal agency.
22.12 Procedures for salary offset -- When deductions may begin.
22.13 Procedures for salary offset -- Types of collection.
22.14 Procedures for salary offset -- Methods of collection.
22.15 Procedures for salary offset -- Imposition of interest,
penalties, and administrative costs.
22.16 Non-waiver of rights.
22.17 Refunds.
Authority: 5 U.S.C. 5514; 5 CFR 550.1104.
Source: 52 FR 7, Jan. 2, 1987, unless otherwise noted.
15 CFR 22.1 Scope.
(a) These regulations provide Department procedures for collection by
salary offset of a Federal employee's pay to satisfy certain debts owed
the Government.
(b) These regulations apply to collections by the Secretary from:
(1) Federal employees who owe debts to the Department; and
(2) Current employees of the Department who owe debts to other
agencies.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.);
the Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay, if
the amount to be recovered was accumulated over four pay periods or
less.
(e) Nothing in these regulations precludes the compromise,
suspension, or termination of collection actions where appropriate.
15 CFR 22.2 Definitions.
(a) Agency means:
(1) An Executive department, military department, Government
corporation, or independent establishment as defined in 5 U.S.C. 101,
102, 103, and 104, respectively;
(2) The United States Postal Service;
(3) The Postal Rate Commission;
(4) An agency or court of the judicial branch; and
(5) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives.
(b) Creditor agency means the agency to which the debt is owed.
(c) Days means calendar days.
(d) Debt means:
(1) An amount of money owed the United States from sources which
include loans insured or guaranteed by the United States; from fees,
leases, rents, royalties, services, sales of real or personal property,
overpayments, penalties, damages, fines and forfeitures (except those
arising under the Uniform Code of Military Justice);
(2) An amount owed to the United States by an employee for pecuniary
losses, including, but not limited to:
(i) Theft, misuse, or loss of Government funds;
(ii) False claims for services and travel;
(iii) Illegal or unauthorized obligations and expenditures of
Government appropriations;
(iv) Authorization of the use of Government owned or leased
equipment, facilities, supplies, and services for other than official or
approved purposes;
(v) Vehicle accidents where the employee is determined to be liable
for the repair or replacement of a Government owned or leased vehicle;
and
(vi) Erroneous entries on accounting records or reports for actions
for which the employee can be held liable.
(e) Department or DOC means the United States Department of Commerce.
(f) Disposable pay means the amount that remains from an employee's
Federal pay after required deductions for Federal, State and local
income taxes; Social Security taxes, including Medicare taxes; Federal
retirement programs; premiums for basic life and health insurance
benefits; and such other deductions that are required by law to be
withheld.
(g) Employee means:
(1) A civilian employee as defined in 5 U.S.C. 2105;
(2) A member of the Armed Forces or Reserves of the United States, or
of a uniformed service, including a commissioned officer of the National
Oceanic and Atmospheric Administration;
(3) An employee of the United States Postal Service or the Postal
Rate Commission;
(4) An employee of an agency or court of the judicial branch; and
(5) An employee of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives.
(h) FCCS means the Federal Claims Collection Standards jointly
published by the Department of Justice and the General Accounting Office
at 4 CFR 101.1 et seq.
(i) Offset means a deduction from the disposable pay of an employee
to satisfy a debt with or without the employee's consent.
(j) Pay means basic pay, special pay, incentive pay, retired pay,
retainer pay, or, in the case of an employee not entitled to basic pay,
other authorized pay.
(k) Paying agency means the agency employing the individual and
authorizing his or her current pay.
(l) Payroll office means the Departmental or other office providing
payroll services to the employee.
(m) Secretary means the Secretary of Commerce, or his/her designee.
15 CFR 22.3 Pay subject to offset.
(a) An offset from an employee's pay may not exceed 15 percent of the
employee's disposable pay, unless the employee agrees in writing to a
larger offset amount.
(b) An offset from pay shall be made at the officially established
pay intervals from the employee's current pay account.
(c) If an employee retires, resigns, or is discharged, or if his or
her employment period or period of active duty otherwise ends, an offset
may be made from subsequent payment on any amount due to the individual
from the Federal Government.
15 CFR 22.4 Determination of indebtedness.
In determining that an employee is indebted, the Secretary will
review the debt to make sure that it is valid and past due.
15 CFR 22.5 Notice requirements before offset.
Except as provided in 22.1, deductions will not be made unless the
Secretary provides the employee with a minimum of 30 calendar days
written notice. This Notice of Intent to offset an employee's salary
(Notice of Intent) will state:
(a) That the Secretary has reviewed the records relating to the claim
and has determined that a debt is owed, the amount of the debt, and the
facts giving rise to the debt;
(b) The Secretary's intention to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest are paid in full;
(c) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(d) An explanation of the Department's requirements concerning
interest, penalties and administrative costs unless such payments are
excused in accordance with 22.15;
(e) The employee's right to inspect and to request and receive a copy
of Department records relating to the debt;
(f) The right to a hearing conducted by an administrative law judge
of the Department or a hearing official, not under the control of the
Secretary, on the Secretary's determination of the debt, the amount of
the debt, or the repayment schedule (i.e., the percentage of disposable
pay to be deducted each pay period), so long as a petition is filed by
the employee as prescribed by the Secretary;
(g) The method and time period for requesting a hearing;
(h) That the timely filing of a petition for hearing will stay the
collection proceedings; (See 22.6);
(i) That a final decision on the hearing will be issued at the
earliest practical date, but not later than 60 days after the filing of
the petition requesting the hearing, unless the employee requests and
the hearing official grants a delay in the proceedings;
(j) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made; and
(k) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(1) Disciplinary procedures appropriate under 5 U.S.C. 7501 et seq.,
5 CFR Part 752, or any other applicable statutes or regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or any
other applicable statutory authority; or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or
any other applicable statutory authority.
(l) Unless there are applicable contractual or statutory provisions
to the contrary, amounts paid on or deducted for the debt which are
later waived or found not owed to the United States will be promptly
refunded to the employee.
15 CFR 22.6 Request for hearing -- prehearing submission(s).
(a) An employee must file a petition for a hearing in accordance with
the instructions in the Notice of Intent. This petition must be filed
by the time stated in the notice described in 22.5 if an employee wants
a hearing concerning:
(1) The existence or amount of the debt; or
(2) The Secretary's proposed offset schedule.
(b) If the employee files his or her required submissions within 5
days after the deadline date established under 22.5 and the hearing
official finds that the employee has shown good cause for failure to
comply with the deadline date, the hearing official may find that an
employee has not waived his or her right to a hearing.
15 CFR 22.7 Hearing procedures.
(a) The hearing will be presided over by either:
(1) A Department administrative law judge; or
(2) A hearing official not under the control of the Secretary.
(b) The hearing shall conform to 102.3(c) of the Federal Claims
Collection Standards (4 CFR 102.3(c)).
(c)(1) If the Secretary's determination regarding the existence or
amount of the debt is contested, the burden is on the employee to
demonstrate that the Secretary's determination was erroneous.
(2) If the hearing official finds the Secretary's determination of
the amount of the debt was erroneous, the hearing official shall
indicate the amount owed by the employee, if any.
(d)(1) If the Secretary's offset schedule is contested, the burden is
on the employee to demonstrate that the payments called for under the
Secretary's schedule will produce an extreme financial hardship for the
employee under 22.9.
(2) If the hearing official finds that the payments called for under
the Secretary's offset schedule will produce an extreme financial
hardship for the employee, the hearing official shall establish an
offset schedule that will result in the repayment of the debt in the
shortest period of time without producing an extreme financial hardship
for the employee.
15 CFR 22.8 Written decision following a hearing.
(a) The hearing official shall issue to the Secretary and the
employee a written opinion stating his or her decision, with a rationale
supporting that decision, as soon as practicable after the hearing, but
not later than 60 days after the employee files the petition requesting
the hearing as provided in 22.5(i).
(b) The written decision following a hearing will include:
(1) A statement of the facts presented to support the nature and
origin of the alleged debt;
(2) The hearing official's analysis, findings, and conclusions, in
light of the hearing, concerning the employee's or the Department's
grounds;
(3) The amount and validity of the alleged debt; and
(4) The repayment schedule if applicable.
(c) In determining whether the Secretary's determination of the
existence or amount of the employee's debt was erroneous, the hearing
official is governed by the relevant Federal statutes and regulations
authorizing and implementing the programs giving rise to the debt, and
by State law, if relevant.
15 CFR 22.9 Standards for determining extreme financial hardship.
(a)(1) An offset produces an extreme financial hardship for an
employee if the offset prevents the employee from meeting the costs
necessarily incurred for essential subsistence expenses of the employee
and his or her spouse and dependents.
(2) Ordinarily, essential subsistence expenses include only costs
incurred for food, housing, clothing, transportation, and medical care.
(b) In determining whether an offset would prevent the employee from
meeting the essential subsistence expenses described in paragraph (a) of
this section, the hearing official shall require that the employee
submit a detailed financial statement showing assets, liabilities,
income and expenses.
15 CFR 22.10 Review of Departmental records related to the debt.
(a) Notification by employee. An employee who intends to inspect or
copy Departmental records related to the debt must make arrangements in
conformance with the instructions in the Notice of Intent.
(b) Secretary's response. In response to a timely request submitted
by the debtor, as described in paragraph (a) of this section, the
Secretary will notify the employee of the location and time when the
employee may inspect and copy Departmental records related to the debt.
15 CFR 22.11 Coordinating offset with another Federal agency.
(a) When Commerce is owed the debt. When the Department is owed a
debt by an employee of another agency, the Department will submit a
written request to the paying agency to begin salary offset. This
request will include certification as to the debt (including the amount
and basis of the debt and the due date of the payment) and that the
Department has complied with these regulations.
(b) When another agency is owed the debt. The Department will use
salary offset against one of its employees who is indebted to another
agency if requested to do so by that agency. Such a request must be
accompanied by a certification by the requesting agency that the person
owes the debt (including the amount) and that the procedural
requirements of 5 U.S.C. 5514 and 5 CFR Part 550, Subpart K, have been
met.
(c) Requests by another Federal Department or agency for Department
cooperation in offsetting the salary of one of its employees must be
directed to the Director for Personnel and Civil Rights, Room 5001, U.S.
Department of Commerce, Herbert C. Hoover Building, 14th and
Constitution Ave., NW., Washington, DC 20230.
15 CFR 22.12 Procedures for salary offset -- When deductions may begin.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the Secretary's Notice of Intent to collect
from the employee's current pay.
(b) If the employee filed a timely petition for hearing, deductions
will begin after the hearing official has provided the employee with a
hearing, and the final written decision is in favor of the Secretary.
(c) If an employee retires or resigns before collection of the amount
of the indebtedness is completed, the remaining indebtedness will be
collected according to the procedures for administrative offset (15 CFR
21).
15 CFR 22.13 Procedures for salary offset -- Types of collection.
A debt will be collected in a lump-sum or in installments.
Collection will be by lump-sum collections unless the amount of the debt
exceeds 15 percent of disposable pay. In these cases, deduction will be
by installments.
15 CFR 22.14 Procedures for salary offset -- Methods of collection.
(a) General. A debt will be collected by deductions at officially
established pay intervals from an employee's current pay account, unless
the employee and the Secretary agree to alternative arrangements for
repayment.
(b) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The
size and frequency of installment deductions will bear a reasonable
relation to the size of the debt and the employee's ability to pay.
However, the amount deducted for any period will not exceed 15 percent
of the disposable pay from which the deduction is made; unless the
employee has agreed in writing to the deduction of a greater amount. If
possible, the installment payment will be sufficient in size and
frequency to liquidate the debt in three years. Installment payments of
less than $25 per pay period or $50 a month will be accepted only in the
most unusual circumstances.
(c) Sources of deductions. The Department will make deductions from
the employee's pay.
15 CFR 22.15 Procedures for salary offset -- Imposition of interest,
penalties, and administrative costs.
These charges will be made on installment payments in accordance with
the Office of Personnel Management regulations (5 CFR 550.1104(n)) and
the requirements contained in the FCCS (4 CFR 102.13).
15 CFR 22.16 Non-waiver of rights.
So long as there are no statutory or contractual provisions to the
contrary, no employee involuntary payment (of all or a portion of a
debt) collected under these regulations will be interpreted as a waiver
of any rights that the employee may have under 5 U.S.C. 5514, these
implementing regulations, or any other provision of contract or law.
15 CFR 22.17 Refunds.
The Department will refund promptly to the appropriate individual
amounts offset under these regulations when:
(a) A debt is waived or otherwise found not owing the United States
(unless expressly prohibited by statute or regulation); or
(b) The Department is directed by an administrative or judicial order
to refund amounts deducted from the employee's current pay.
15 CFR 22.17 PART 23 -- USE OF PENALTY MAIL IN THE LOCATION AND
RECOVERY OF MISSING CHILDREN
Sec.
23.1 Purpose.
23.2 Contact person.
23.3 Plan.
23.4 Cost and percentage estimates.
23.5 Report to the Office of Juvenile Justice and Delinquency
Prevention.
23.6 Definitions.
23.7 Notice to Department of Commerce organizational units of
implementation and procedures.
Authority: 39 U.S.C. 3220(a)(2); 5 U.S.C. 301.
Source: 51 FR 46614, Dec. 24, 1986, unless otherwise noted.
15 CFR 23.1 Purpose.
These regulations are intended to comply with 39 U.S.C. 3220(a)(2),
and the Office of Juvenile Justice and Delinquency Prevention (OJJDP)
guidelines (50 FR 46622), to assist in the location and recovery of
missing children through the use of penalty mail.
15 CFR 23.2 Contact person.
Tim Coss, Office of Administrative Services Operations, U.S.
Department of Commerce (H2063), 14th and Constitution Ave., NW.,
Washington, DC 20230, Telephone (202) 377-2108
15 CFR 23.3 Plan.
(a) The Department of Commerce will supplement and expand the
national effort to assist in the location and recovery of missing
children through the economical use of missing children information in
domestic penalty mail directed to the public and Federal employees.
(b) The Department of Commerce may include, on or inside authorized
types of penalty mail, pictures and biographical data related to missing
children, provided such use is determined to be cost effective. The
authorized types of penalty mail include:
(1) All envelopes; and
(2) Self-mailer publications (newsletters, bulletins, etc.) with a
shelf-life of no more than 90 days.
(c) The manner in which pictures and biographical data may be used
includes:
(1) Printing on envelopes at the time they are initially printed with
the United States Postal Service (USPS) required postal code
identification;
(2) Printed inserts that are placed in envelopes along with other
mailing material;
(3) Stickers that are printed and placed on envelopes prior to
mailing; and
(4) Printing as part of the content of self-mailers such as bureau
newsletters, bulletins, etc.
(d) Missing children information will not be placed on letter-size
envelopes in the ares described as the ''Penalty Indicia Area,'' ''OCR
Read Area,'' ''Bar Code Read Area,'' and ''Return Address Area'' per
Appendix A of the OJJDP guidelines.
(e) The National Center for Missing and Exploited Children (National
Center) will be the sole source from which the Department of Commerce
will obtain the camera-ready and other photographic and biographical
materials for use by organizational units. Photographs which were
reasonably current as of the time of the child's disappearance shall be
the only acceptable form of visual media or pictorial likeness used on
or in penalty mail.
(f) The Department of Commerce will remove all printed penalty mail
envelopes and other materials from circulation or other use (i.e., use
or destroy) within 90 days of notification by the National Center of the
need to withdraw penalty mail envelopes and other materials related to a
particular child from circulation. The Department of Commerce will not
include missing children information on blank pages or covers of items
such as those to be included in the Superintendent of Documents' Sales
Program, or to be distributed to Depository Libraries, as such material
generally could not be withdrawn from use within 90 days of
notification. The National Center will be responsible for immediately
notifying the Department Contact Person, in writing, of the need to
withdraw from circulation penalty mail envelopes and other materials
related to a particular child.
(g) The Department of Commerce will give priority:
(1) To penalty mail that is addressed to the public for receipt in
the United States, its territories and possessions; and
(2) To inter- and intra-agency publications and other media that will
be widely disseminated to and viewed by Federal employees.
(h) All suggestions and/or recommendations for innovative,
cost-effective techniques should be forwarded to the Department Contact
Person. The Department Contact Person shall conduct biannual meetings
of departmental representatives to discuss the current plan and
recommendations for future plans.
(i) This shall be the sole regulation implementing this program for
the Department of Commerce.
15 CFR 23.4 Cost and percentage estimates.
It is estimated that this program will cost the Department of
Commerce $39,530 in the first year. It is the Department of Commerce's
estimate that 9% of its penalty mail will transmit missing children
photographs and information when the program is fully implemented.
15 CFR 23.5 Report to the Office of Juvenile Justice and Delinquency
Prevention.
The Department of Commerce will compile and submit a consolidated
report to OJJDP, by June 30, 1987, on its experience in implementation
of 39 U.S.C. 3220(a) (2), the OJJDP guidelines, and the Department of
Commerce's regulation. This report will cover the period from December
24, 1986 through March 31, 1987, and provide detail on:
(a) The Department of Commerce's experience in implementation
(including problems encountered), successful and/or innovative methods
adopted to use missing children photographs and information on or in
penalty mail, the estimated number of pieces of penalty mail containing
such information, and the percentage of total penalty mail directed to
the public which included missing children information.
(b) The estimated total cost to implement the program, with
supporting detail, and
(c) Recommendations for changes in the program to make it more
effective.
15 CFR 23.6 Definitions.
(a) Operating units. Bureaus and other organizational entities
outside the Office of the Secretary charged with carrying out specified
substantive functions (i.e., programs).
(b) Organizational units. The organizational units within the
Department of Commerce are:
Office of the Secretary
Bureau of Economic Analysis
Economic Development Administration
Bureau of the Census
International Trade Administration
Minority Business Development Agency
National Bureau of Standards
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
National Technical Information Service
Patent and Trademark Office
United States Travel and Tourism Administration
15 CFR 23.7 Notice to Department of Commerce organizational units of
implementation and procedures.
Following are roles and responsibilities for the program within the
Department of Commerce.
(a) The Department Contact Person shall:
(1) Serve as the Department of Commerce's sole representative for
ordering materials, including camera-ready negatives, from the National
Center,
(2) Serve as the Department of Commerce's sole supplier of materials
to Operating Units,
(3) Maintain a current list of personnel within each Operating Unit
who are authorized to order materials,
(4) Notify Operating Units whenever permission to use information on
a missing child has been withdrawn,
(5) Ensure that only current missing children materials are
distributed to Operating Units, and that only those requests from
authorized departmental representatives are filled,
(6) Prepare all required departmental reports on the program,
(7) Promulgate any departmentwide operating instructions deemed
appropriate for the program, and
(8) Chair biannual meetings of departmental representatives to
discuss the program and identify additional opportunities to use the
missing children data with penalty mail.
(b) The Head of each Operating Unit (and for the Office of the
Secretary, the Director of the Office of Administrative Services
Operations), or his/her representative, shall:
(1) Designate a single person to act as the Operating Unit's
representative to the Department for requesting and controlling missing
children materials and receiving notification to withdraw materials from
use (an alternative may be designated to act in the representative's
absence),
(2) Provide the Department Contact Person with the name, title,
telephone number, and room number of the Operating Unit's representative
for the program (and also for the alternate, if one is designated), and
notify the Department of changes when they occur,
(3) Ensure that the shelf-life of printed penalty mail materials
containing missing children information is limited to a maximum of three
months,
(4) Ensure that information on a child is not used once permission
has been withdrawn and the shelf-life for the material would keep the
information available for greater than 90 days after the date that
permission to use it was withdrawn,
(5) Direct that the Operating Unit representative (or alternate)
order missing children information, as appropriate, only from the
Department Contact Person,
(6) Comply with policies, procedures, and operating instructions
issued by the Department,
(7) Maintain necessary information to prepare required reports and
submit them in accordance with requirements,
(8) Provide only current camera-ready and other photographic and
biographical materials to printers, including those at the
Administrative Support Centers, and
(9) Otherwise determine and control the use of missing children
materials and information by the Operating Unit.
(c) The Director of each Administrative Support Center, or his/her
representatives, shall:
(1) Cooperate with serviced Operating Units to promote the use of
missing children information on penalty mail,
(2) As directed by an Operating Unit, utilize camera-ready and other
photographic and biographical material provided by the Operating Unit in
preparation of material for use with penalty mail, and
(3) Assure that any printing performed or procured under its
direction is in accordance with the type of material and the manner of
presentation as prescribed in this regulation.
15 CFR 23.7 Pt. 24
15 CFR 23.7 PART 24 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS
15 CFR 23.7 Subpart A -- General
Sec.
24.1 Purpose and scope of this part.
24.2 Scope of subpart.
24.3 Definitions.
24.4 Applicability.
24.5 Effect on other issuances.
24.6 Additions and exceptions.
15 CFR 23.7 Subpart B -- Pre-Award Requirements
24.10 Forms for applying for grants.
24.11 State plans.
24.12 Special grant or subgrant conditions for ''high-risk''
grantees.
15 CFR 23.7 Subpart C -- Post-Award Requirements
24.20 Standards for financial management systems.
24.21 Payment.
24.22 Allowable costs.
24.23 Period of availability of funds.
24.24 Matching or cost sharing.
24.25 Program income.
24.26 Non-Federal audit.
24.30 Changes.
24.31 Real property.
24.32 Equipment.
24.33 Supplies.
24.34 Other property.
24.35 Subawards to debarred and suspended parties.
24.36 Procurement.
24.37 Subgrants.
24.40 Monitoring and reporting program performance.
24.41 Financial reporting.
24.42 Retention and access requirements for records.
24.43 Enforcement.
24.44 Termination for convenience.
15 CFR 23.7 Subpart D -- After-the-Grant Requirements
24.50 Closeout.
24.51 Later disallowances and adjustments.
24.52 Collection of amounts due.
15 CFR 23.7 Subpart E -- Entitlements (Reserved)
Authority: 5 U.S.C. 301.
Source: 53 FR 8048, 8087, Mar. 11, 1988, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 49 FR 24958, June 18, 1984, 52 FR 20178, May 29, 1987, and
53 FR 8028, March 11, 1988.
15 CFR 23.7 Subpart A -- General
15 CFR 24.1 Purpose and scope of this part.
This part establishes uniform administrative rules for Federal grants
and cooperative agreements and subawards to State, local and Indian
tribal governments.
15 CFR 24.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
15 CFR 24.3 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for: (1) Goods and
other tangible property received; (2) services performed by employees,
contractors, subgrantees, subcontractors, and other payees; and (3)
other amounts becoming owed under programs for which no current services
or performance is required, such as annuities, insurance claims, and
other benefit payments.
Accrued income means the sum of: (1) Earnings during a given period
from services performed by the grantee and goods and other tangible
property delivered to purchasers, and (2) amounts becoming owed to the
grantee for which no current services or performance is required by the
grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other
charges such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from programmatic
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means (1) with respect to a grant, the Federal
agency, and (2) with respect to a subgrant, the party that awarded the
subgrant.
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for grant and
subgrant in this section and except where qualified by Federal) a
procurement contract under a grant or subgrant, and means a procurement
subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means: (1) For nonconstruction grants, the SF-269
''Financial Status Report'' (or other equivalent report); (2) for
construction grants, the SF-271 ''Outlay Report and Request for
Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat
688) certified by the Secretary of the Interior as eligible for the
special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. 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,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which is
accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under state law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared
on a cash basis, outlays are the sum of actual cash disbursement for
direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the amount of
cash advances and payments made to contractors and subgrantees. For
reports prepared on an accrued expenditure basis, outlays are the sum of
actual cash disbursements, the amount of indirect expense incurred, the
value of inkind contributions applied, and the new increase (or
decrease) in the amounts owed by the grantee for goods and other
property received, for services performed by employees, contractors,
subgrantees, subcontractors, and other payees, and other amounts
becoming owed under programs for which no current services or
performance are required, such as annuities, insurance claims, and other
benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost.
Real property means land, including land improvements, structures and
appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted -- not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of money,
or property in lieu of money, made under a grant by a grantee to an
eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of grant in this part.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than equipment as
defined in this part.
Suspension means depending on the context, either (1) temporary
withdrawal of the authority to obligate grant funds pending corrective
action by the grantee or subgrantee or a decision to terminate the
grant, or (2) an action taken by a suspending official in accordance
with agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. Termination does not include: (1)
Withdrawal of funds awarded on the basis of the grantee's underestimate
of the unobligated balance in a prior period; (2) Withdrawal of the
unobligated balance as of the expiration of a grant; (3) Refusal to
extend a grant or award additional funds, to make a competing or
noncompeting continuation, renewal, extension, or supplemental award;
or (4) voiding of a grant upon determination that the award was obtained
fraudulently, or was otherwise illegal or invalid from inception.
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligatis for reports prepared on a cash basis mean the
amount of obligations incurred by the grantee that has not been paid.
For reports prepared on an accrued expenditure basis, they represent the
amount of obligations incurred by the grantee for which an outlay has
not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
15 CFR 24.4 Applicability.
(a) General. Subparts A through D of this part apply to all grants
and subgrants to governments, except where inconsistent with Federal
statutes or with regulations authorized in accordance with the exception
provision of 24.6, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under Title V, Subtitle D, Chapter 2,
Section 583 -- the Secretary's discretionary grant program) and Titles
I-III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and Part C of Title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (Title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (Title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (Title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project that
is also supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat.
1809), for cash assistance, medical assistance, and supplemental
security income benefits to refugees and entrants and the administrative
costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per Diem
Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
24.4(a) (3) through (8) are subject to Subpart E.
15 CFR 24.5 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this part are superseded, except
to the extent they are required by statute, or authorized in accordance
with the exception provision in 24.6.
15 CFR 24.6 Additions and exceptions
(a) For classes of grants and grantees subject to this part, Federal
agencies may not impose additional administrative requirements except in
codified regulations published in the Federal Register.
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
15 CFR 24.6 Subpart B -- Pre-Award Requirements
15 CFR 24.10 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies for
grants, and is not required to be applied by grantees in dealing with
applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental organizations.
(1) In applying for grants, applicants shall only use standard
application forms or those prescribed by the granting agency with the
approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
15 CFR 24.11 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ''Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to regulations
implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
15 CFR 24.12 Special grant or subgrant conditions for ''high-risk''
grantees.
(a) A grantee or subgrantee may be considered ''high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management
standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the
conditions/restrictions imposed.
15 CFR 24.12 Subpart C -- Post-Award Requirements
15 CFR 24.12 Financial Administration
15 CFR 24.20 Standards for financial management systems.
(a) A State must expand and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well
as its subgrantees and cost-type contractors, must be sufficient to --
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance with the financial reporting requirements of the grant or
subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must
contain information pertaining to grant or subgrant awards and
authorizations, obligations, unobligated balances, assets, liabilities,
outlays or expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard
all such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant or subgrant. Financial information
must be related to performance or productivity data, including the
development of unit cost information whenever appropriate or
specifically required in the grant or subgrant agreement. If unit cost
data are required, estimates based on available documentation will be
accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When
advances are made by letter-of-credit or electronic transfer of funds
methods, the grantee must make drawdowns as close as possible to the
time of making disbursements. Grantees must monitor cash drawdowns by
their subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
15 CFR 24.21 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which a Federal agency will make payments to grantees, and
grantees will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR Part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided they maintain or demonstrate the willingness and ability to
maintain procedures to minimize the time elapsing between the transfer
of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. Grantees
and subgrantees may also be paid by reimbursement for any construction
grant. Except as otherwise specified in regulation, Federal agencies
shall not use the percentage of completion method to pay construction
grants. The grantee or subgrantee may use that method to pay its
construction contractor, and if it does, the awarding agency's payments
to the grantee or subgrantee will be based on the grantee's or
subgrantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria
for advance payments described in paragraph (c) of this section, and the
Federal agency has determined that reimbursement is not feasible because
the grantee lacks sufficient working capital, the awarding agency may
provide cash or a working capital advance basis. Under this procedure
the awarding agency shall advance cash to the grantee to cover its
estimated disbursement needs for an initial period generally geared to
the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working
capital advance method of payment shall not be used by grantees or
subgrantees if the reason for using such method is the unwillingness or
inability of the grantee to provide timely advances to the subgrantee to
meet the subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on
payment. (1) Grantees and subgrantees shall disburse repayments to and
interest earned on a revolving fund before requesting additional cash
payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees
and subgrantees shall disburse program income, rebates, refunds,
contract settlements, audit recoveries and interest earned on such funds
before requesting additional cash payments.
(g) Withholding payments. (1) Unless otherwise required by Federal
statute, awarding agencies shall not withhold payments for proper
charges incurred by grantees or subgrantees unless --
(i) The grantee or subgrantee has failed to comply with grant award
conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition,
but without suspension of the grant, shall be released to the grantee
upon subsequent compliance. When a grant is suspended, payment
adjustments will be made in accordance with 24.43(c).
(3) A Federal agency shall not make payment to grantees for amounts
that are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of work. Payments shall be made by
the Federal agency when the grantees or subgrantees actually disburse
the withheld funds to the contractors or to escrow accounts established
to assure satisfactory completion of work.
(h) Cash depositories. (1) Consistent with the national goal of
expanding the opportunities for minority business enterprises, grantees
and subgrantees are encouraged to use minority banks (a bank which is
owned at least 50 percent by minority group members). A list of
minority owned banks can be obtained from the Minority Business
Development Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account
only when required by Federal-State agreement.
(i) Interest earned on advances. Except for interest earned on
advances of funds exempt under the Intergovernmental Cooperation Act (31
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C.
450), grantees and subgrantees shall promptly, but at least quarterly,
remit interest earned on advances to the Federal agency. The grantee or
subgrantee may keep interest amounts up to $100 per year for
administrative expenses.
15 CFR 24.22 Allowable costs.
(a) Limitation on use of funds. Grant funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type
contractors, including allowable costs in the form of payments to
fixed-price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any
fee or profit (or other increment above allowable costs) to the grantee
or subgrantee.
(b) Applicable cost principles. For each kind of organization, there
is a set of Federal principles for determining allowable costs.
Allowable costs will be determined in accordance with the cost
principles applicable to the organization incurring the costs. The
following chart lists the kinds of organizations and the applicable cost
principles.
15 CFR 24.23 Period of availability of funds.
(a) General. Where a funding period is specified, a grantee may
charge to the award only costs resulting from obligations of the funding
period unless carryover of unobligated balances is permitted, in which
case the carryover balances may be charged for costs resulting from
obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all
obligations incurred under the award not later than 90 days after the
end of the funding period (or as specified in a program regulation) to
coincide with the submission of the annual Financial Status Report
(SF-269). The Federal agency may extend this deadline at the request of
the grantee.
15 CFR 24.24 Matching or cost sharing.
(a) Basic rule: Costs and contributions acceptable. With the
qualifications and exceptions listed in paragraph (b) of this section, a
matching or cost sharing requirement may be satisfied by either or both
of the following:
(1) Allowable costs incurred by the grantee, subgrantee or a
cost-type contractor under the assistance agreement. This includes
allowable costs borne by non-Federal grants or by others cash donations
from non-Federal third parties.
(2) The value of third party in-kind contributions applicable to the
period to which the cost sharing or matching requirements applies.
(b) Qualifications and exceptions -- (1) Costs borne by other Federal
grant agreements. Except as provided by Federal statute, a cost sharing
or matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(2) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(3) Cost or contributions counted towards other Federal costs-sharing
requirements. Neither costs nor the values of third party in-kind
contributions may count towards satisfying a cost sharing or matching
requirement of a grant agreement if they have been or will be counted
towards satisfying a cost sharing or matching requirement of another
Federal grant agreement, a Federal procurement contract, or any other
award of Federal funds.
(4) Costs financed by program income. Costs financed by program
income, as defined in 24.25, shall not count towards satisfying a cost
sharing or matching requirement unless they are expressly permitted in
the terms of the assistance agreement. (This use of general program
income is described in 24.25(g).)
(5) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(6) Records. Costs and third party in-kind contributions counting
towards satisfying a cost sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third
party in-kind contributions was derived. To the extent feasible,
volunteer services will be supported by the same methods that the
organization uses to support the allocability of regular personnel
costs.
(7) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Costs sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost
sharing or matching purposes will conform to the rules in the succeeding
sections of this part. If a third party in-kind contribution is a type
not treated in those sections, the value placed upon it shall be fair
and reasonable.
(c) Valuation of donated services -- (1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals will be
valued at rates consistent with those ordinarily paid for similar work
in the grantee's or subgrantee's organization. If the grantee or
subgrantee does not have employees performing similar work, the rates
will be consistent with those ordinarily paid by other employers for
similar work in the same labor market. In either case, a reasonable
amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services will be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section
applies.
(d) Valuation of third party donated supplies and loaned equipment or
space. (1) If a third party donates supplies, the contribution will be
valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution will be valued at the fair
rental rate of the equipment or space.
(e) Valuation of third party donated equipment, buildings, and land.
If a third party donates equipment, buildings, or land, and title passes
to a grantee or subgrantee, the treatment of the donated property will
depend upon the purpose of the grant or subgrant, as follows:
(1) Awards for capital expenditures. If the purpose of the grant or
subgrant is to assist the grantee or subgrantee in the acquisition of
property, the market value of that property at the time of donation may
be counted as cost sharing or matching,
(2) Other awards. If assisting in the acquisition of property is not
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of
this section apply:
(i) If approval is obtained from the awarding agency, the market
value at the time of donation of the donated equipment or buildings and
the fair rental rate of the donated land may be counted as cost sharing
or matching. In the case of a subgrant, the terms of the grant
agreement may require that the approval be obtained from the Federal
agency as well as the grantee. In all cases, the approval may be given
only if a purchase of the equipment or rental of the land would be
approved as an allowable direct cost. If any part of the donated
property was acquired with Federal funds, only the non-federal share of
the property may be counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this
section, no amount may be counted for donated land, and only
depreciation or use allowances may be counted for donated equipment and
buildings. The depreciation or use allowances for this property are not
treated as third party in-kind contributions. Instead, they are treated
as costs incurred by the grantee or subgrantee. They are computed and
allocated (usually as indirect costs) in accordance with the cost
principles specified in 24.22, in the same way as depreciation or use
allowances for purchased equipment and buildings. The amount of
depreciation or use allowances for donated equipment and buildings is
based on the property's market value at the time it was donated.
(f) Valuation of grantee or subgrantee donated real property for
construction/acquisition. If a grantee or subgrantee donates real
property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or
matching. If any part of the donated property was acquired with Federal
funds, only the non-federal share of the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some cases under paragraphs (d),
(e) and (f) of this section, it will be necessary to establish the
market value of land or a building or the fair rental rate of land or of
space in a building. In these cases, the Federal agency may require the
market value or fair rental value be set by an independent appraiser,
and that the value or rate be certified by the grantee. This
requirement will also be imposed by the grantee on subgrantees.
15 CFR 24.25 Program income.
(a) General. Grantees are encouraged to earn income to defray
program costs. Program income includes income from fees for services
performed, from the use or rental of real or personal property acquired
with grant funds, from the sale of commodities or items fabricated under
a grant agreement, and from payments of principal and interest on loans
made with grant funds. Except as otherwise provided in regulations of
the Federal agency, program income does not include interest on grant
funds, rebates, credits, discounts, refunds, etc. and interest earned
on any of them.
(b) Definition of program income. Program income means gross income
received by the grantee or subgrantee directly generated by a grant
supported activity, or earned only as a result of the grant agreement
during the grant period. ''During the grant period'' is the time
between the effective date of the award and the ending date of the award
reflected in the final financial report.
(c) Cost of generating program income. If authorized by Federal
regulations or the grant agreement, costs incident to the generation of
program income may be deducted from gross income to determine program
income.
(d) Governmental revenues. Taxes, special assessments, levies,
fines, and other such revenues raised by a grantee or subgrantee are not
program income unless the revenues are specifically identified in the
grant agreement or Federal agency regulations as program income.
(e) Royalties. Income from royalties and license fees for
copyrighted material, patents, and inventions developed by a grantee or
subgrantee is program income only if the revenues are specifically
identified in the grant agreement or Federal agency regulations as
program income. (See 24.34.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of 24.31 and
24.32.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program income in excess of any limits stipulated shall also be
deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under
the conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(h) Income after the award period. There are no Federal requirements
governing the disposition of program income earned after the end of the
award period (i.e., until the ending date of the final financial report,
see paragraph (a) of this section), unless the terms of the agreement or
the Federal agency regulations provide otherwise.
15 CFR 24.26 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for
obtaining audits in accordance with the Single Audit Act of 1984 (31
U.S.C. 7501-7) and Federal agency implementing regulations. The audits
shall be made by an independent auditor in accordance with generally
accepted government auditing standards covering financial and compliance
audits.
(b) Subgrantees. State or local governments, as those terms are
defined for purposes of the Single Audit Act, that receive Federal
financial assistance and provide $25,000 or more of it in a fiscal year
to a subgrantee shall:
(1) Determine whether State or local subgrantees have met the audit
requirements of the Act and whether subgrantees covered by OMB Circular
A-110, ''Uniform Requirements for Grants and Other Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations'' have met the audit requirement. Commercial contractors
(private forprofit and private and governmental organizations) providing
goods and services to State and local governments are not required to
have a single audit performed. State and local govenments should use
their own procedures to ensure that the contractor has complied with
laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may
be accomplished by reviewing an audit of the subgrantee made in
accordance with the Act, Circular A-110, or through other means (e.g.,
program reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instance of noncompliance
with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have
access to the records and financial statements.
(c) Auditor selection. In arranging for audit services, 24.36 shall
be followed.
15 CFR 24.26 Changes, Property, and Subawards
15 CFR 24.30 Changes.
(a) General. Grantees and subgrantees are permitted to rebudget
within the approved direct cost budget to meet unanticipated
requirements and may make limited program changes to the approved
project. However, unless waived by the awarding agency, certain types
of post-award changes in budgets and projects shall require the prior
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see
24.22) contain requirements for prior approval of certain types of
costs. Except where waived, those requirements apply to all grants and
subgrants even if paragraphs (c) through (f) of this section do not.
(c) Budget changes -- (1) Nonconstruction projects. Except as stated
in other regulations or an award document, grantees or subgrantees shall
obtain the prior approval of the awarding agency whenever any of the
following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional
funding.
(ii) Unless waived by the awarding agency, cumulative transfers among
direct cost categories, or, if applicable, among separately budgeted
programs, projects, functions, or activities which exceed or are
expected to exceed ten percent of the current total approved budget,
whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from
direct payments to trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain
prior written approval for any budget revision which would result in the
need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides funding for both construction and nonconstruction
activities, the grantee or subgrantee must obtain prior written approval
from the awarding agency before making any fund or budget transfer from
nonconstruction to construction or vice versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the
prior approval of the awarding agency whenever any of the following
actions is anticipated:
(1) Any revision of the scope or objectives of the project
(regardless of whether there is an associated budget revision requiring
prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application
or a grant award. In research projects, a change in the project
director or principal investigator shall always require approval unless
waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if
authorized by law) or otherwise obtaining the services of a third party
to perform activities which are central to the purposes of the award.
This approval requirement is in addition to the approval requirements of
24.36 but does not apply to the procurement of equipment, supplies, and
general support services.
(e) Additional prior approval requirements. The awarding agency may
not require prior approval for any budget revision which is not
described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of
any budget revision will be in the same budget formal the grantee used
in its application and shall be accompanied by a narrative justification
for the proposed revision.
(2) A request for a prior approval under the applicable Federal cost
principles (see 24.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in
writing to the grantee. The grantee will promptly review such request
and shall approve or disapprove the request in writing. A grantee will
not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee.
If the revision, requested by the subgrantee would result in a change
to the grantee's approved project which requires Federal prior approval,
the grantee will obtain the Federal agency's approval before approving
the subgrantee's request.
15 CFR 24.31 Real property.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to real property acquired under a grant or subgrant
will vest upon acquisition in the grantee or subgrantee respectively.
(b) Use. Except as otherwise provided by Federal statutes, real
property will be used for the originally authorized purposes as long as
needed for that purposes, and the grantee or subgrantee shall not
dispose of or encumber its title or other interests.
(1) The Federal awarding agency may require the placing of
appropriate notices of record to advise that property has been acquired
or improved with Federal financial assistance, and that use and
disposition conditions apply to the property.
(c) Disposition. When real property is no longer needed for the
originally authorized purpose, the grantee or subgrantee will request
disposition instructions from the awarding agency. The instructions
will provide for one of the following alternatives:
(1) Retention of title. Retain title after compensating the awarding
agency. The amount paid to the awarding agency will be computed by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the fair market value of the property.
However, in those situations where a grantee or subgrantee is disposing
of real property acquired with grant funds and acquiring replacement
real property under the same program, the net proceeds from the
disposition may be used as an offset to the cost of the replacement
property.
(2) Sale of property. Sell the property and compensate the awarding
agency. The amount due to the awarding agency will be calculated by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the proceeds of the sale after deduction of
any actual and reasonable selling and fixing-up expenses. If the grant
is still active, the net proceeds from sale may be offset against the
original cost of the property. When a grantee or subgrantee is directed
to sell property, sales procedures shall be followed that provide for
competition to the extent practicable and result in the highest possible
return.
(3) Transfer of title. Transfer title to the awarding agency or to a
third-party designated/approved by the awarding agency. The grantee or
subgrantee shall be paid an amount calculated by applying the grantee or
subgrantee's percentage of participation in the purchase of the real
property to the current fair market value of the property.
(53 FR 8048, Mar. 11, 1988, as amended at 53 FR 8049, Mar. 11, 1988)
15 CFR 24.32 Equipment.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to equipment acquired under a grant or subgrant will
vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage, and dispose of equipment
acquired under a grant by the State in accordance with State laws and
procedures. Other grantees and subgrantees will follow paragraphs (c)
through (e) of this section.
(c) Use. (1) Equipment shall be used by the grantee or subgrantee in
the program or project for which it was acquired as long as needed,
whether or not the project or program continues to be supported by
Federal funds. When no longer needed for the original program or
project, the equipment may be used in other activities currently or
previously supported by a Federal agency.
(2) The grantee or subgrantee shall also make equipment available for
use on other projects or programs currently or previously supported by
the Federal Government, providing such use will not interfere with the
work on the projects or program for which it was originally acquired.
First preference for other use shall be given to other programs or
projects supported by the awarding agency. User fees should be
considered if appropriate.
(3) Notwithstanding the encouragement in 24.25(a) to earn program
income, the grantee or subgrantee must not use equipment acquired with
grant funds to provide services for a fee to compete unfairly with
private companies that provide equivalent services, unless specifically
permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee
may use the equipment to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property,
subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment
(including replacement equipment), whether acquired in whole or in part
with grant funds, until disposition takes place will, as a minimum, meet
the following requirements:
(1) Property records must be maintained that include a description of
the property, a serial number or other identification number, the source
of property, who holds title, the acquisition date, and cost of the
property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate safeguards
to prevent loss, damage, or theft of the property. Any loss, damage, or
theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell
the property, proper sales procedures must be established to ensure the
highest possible return.
(e) Disposition. When original or replacement equipment acquired
under a grant or subgrant is no longer needed for the original project
or program or for other activities currently or previously supported by
a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value of
less than $5,000 may be retained, sold or otherwise disposed of with no
further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in
excess of $5,000 may be retained or sold and the awarding agency shall
have a right to an amount calculated by multiplying the current market
value or proceeds from sale by the awarding agency's share of the
equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate
disposition actions, the awarding agency may direct the grantee or
subgrantee to take excess and disposition actions.
(f) Federal equipment. In the event a grantee or subgrantee is
provided federally-owned equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance
with Federal agency rules and procedures, and submit an annual inventory
listing.
(3) When the equipment is no longer needed, the grantee or subgrantee
will request disposition instructions from the Federal agency.
(g) Right to transfer title. The Federal awarding agency may reserve
the right to transfer title to the Federal Government or a third part
named by the awarding agency when such a third party is otherwise
eligible under existing statutes. Such transfers shall be subject to
the following standards:
(1) The property shall be identified in the grant or otherwise made
known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction
within 120 calendar days after the end of the Federal support of the
project for which it was acquired. If the Federal awarding agency fails
to issue disposition instructions within the 120 calendar-day period the
grantee shall follow 24.32(e).
(3) When title to equipment is transferred, the grantee shall be paid
an amount calculated by applying the percentage of participation in the
purchase to the current fair market value of the property.
15 CFR 24.33 Supplies.
(a) Title. Title to supplies acquired under a grant or subgrant will
vest, upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies
exceeding $5,000 in total aggregate fair market value upon termination
or completion of the award, and if the supplies are not needed for any
other federally sponsored programs or projects, the grantee or
subgrantee shall compensate the awarding agency for its share.
15 CFR 24.34 Other property.
(a) Copyrights. The Federal awarding agency reserves a royalty-free,
nonexclusive, and irrevocable license to reproduce, publish or otherwise
use, and to authorize others to use, for Federal Government purposes:
(1) The copyright in any work developed under a grant, subgrant, or
contract under a grant or subgrant; and
(2) Any rights of copyright to which a grantee, subgrantee, or a
contractor purchases ownership with grant support.
(b) Intangible property. Title to such property as loans, notes, and
other debt instruments (whether considered tangible or intangible)
acquired under a grant or subgrant will vest upon acquisition in the
grantee or subgrantee respectively. Such property will be used for the
originally authorized purpose as long as needed for that purpose, and
the grantee or subgrantee shall not dispose of or encumber its title or
other interests. When no longer needed for the originally authorized
purpose, disposition of such property will be made as provided in
24.32(e).
(53 FR 8049, Mar. 11, 1988)
15 CFR 24.35 Subawards to debarred and suspended parties.
Grantees and subgrantees must not make any award or permit any award
(subgrant or contract) at any tier to any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549, ''Debarment
and Suspension.''
15 CFR 24.36 Procurement.
(a) States. When procuring property and services under a grant, a
State will follow the same policies and procedures it uses for
procurements from its non-Federal funds. The State will ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. Other grantees and subgrantees will follow paragraphs (b)
through (i) in this section.
(b) Procurement standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and subgrantees will maintain a contract administration
system which ensures that contractors perform in accordance with the
terms, conditions, and specifications of their contracts or purchase
orders.
(3) Grantees and subgrantees will maintain a written code of
standards of conduct governing the performance of their employees
engaged in the award and administration of contracts. No employee,
officer or agent of the grantee or subgrantee shall participate in
selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the
above, has a financial or other interest in the firm selected for award.
The grantee's or subgrantee's officers, employees or agents will
neither solicit nor accept gratuities, favors or anything of monetary
value from contractors, potential contractors, or parties to
subagreements. Grantee and subgrantees may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item
of nominal intrinsic value. To the extent permitted by State or local
law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of
such standards by the grantee's and subgrantee's officers, employees, or
agents, or by contractors or their agents. The awarding agency may in
regulation provide additional prohibitions relative to real, apparent,
or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of
proposed procurements to avoid purchase of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate,
an analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and
subgrantees are encouraged to enter into State and local
intergovernmental agreements for procurement or use of common goods and
services.
(6) Grantees and subgrantees are encouraged to use Federal excess and
surplus property in lieu of purchasing new equipment and property
whenever such use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction projects of sufficient size to
offer reasonable opportunities for cost reductions. Value engineering
is a systematic and creative anaylsis of each contract item or task to
ensure that its essential function is provided at the overall lower
cost.
(8) Grantees and subgrantees will make awards only to responsible
contractors possessing the ability to perform successfully under the
terms and conditions of a proposed procurement. Consideration will be
given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and technical
resources.
(9) Grantees and subgrantees will maintain records sufficient to
detail the significant history of a procurement. These records will
include, but are not necessarily limited to the following: rationale
for the method of procurement, selection of contract type, contractor
selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type
contracts only --
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor
exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in
accordance with good administrative practice and sound business
judgment, for the settlement of all contractual and administrative
issues arising out of procurements. These issues include, but are not
limited to source evaluation, protests, disputes, and claims. These
standards do not relieve the grantee or subgrantee of any contractual
responsibilities under its contracts. Federal agencies will not
substitute their judgment for that of the grantee or subgrantee unless
the matter is primarily a Federal concern. Violations of law will be
referred to the local, State, or Federal authority having proper
jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle
and resolve disputes relating to their procurements and shall in all
instances disclose information regarding the protest to the awarding
agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal
agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of
this section (violations of State or local law will be under the
jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures
for failure to review a complaint or protest. Protests received by the
Federal agency other than those specified above will be referred to the
grantee or subgrantee.
(c) Competition. (1) All procurement transactions will be conducted
in a manner providing full and open competition consistent with the
standards of 24.36. Some of the situations considered to be restrictive
of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between
affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer
contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ''brand name'' product instead of allowing
''an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed
in-State or local geographical preferences in the evaluation of bids or
proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this
section preempts State licensing laws. When contracting for
architectural and engineering (A/E) services, geographic location may be
a selection criteria provided its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to
compete for the contract.
(3) Grantees will have written selection procedures for procurement
transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical
to make a clear and accurate description of the technical requirements,
a ''brand name or equal'' description may be used as a means to define
the performance or other salient requirements of a procurement. The
specific features of the named brand which must be met by offerors shall
be clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and
all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists
of persons, firms, or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. Also, grantees and subgrantees will
not preclude potential bidders from qualifying during the solicitation
period.
(d) Methods of procurement to be followed -- (1) Procurement by small
purchase procedures. Small purchase procedures are those relatively
simple and informal procurement methods for securing services, supplies,
or other property that do not cost more than $25,000 in the aggregate.
If small purchase procurements are used, price or rate quotations will
be obtained from an adequate number of qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is the
lowest in price. The sealed bid method is the preferred method for
procuring construction, if the conditions in 24.36(d)(2)(i) apply.
(i) In order for sealed bidding to be feasible, the following
conditions should be present:
(A) A complete, adequate, and realistic specification or purchase
description is available;
(B) Two or more responsible bidders are willing and able to compete
effectively for the business; and
(C) The procurement lends itself to a firm fixed price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids
shall be solicited from an adequate number of known suppliers, providing
them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications
and pertinent attachments, shall define the items or services in order
for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place prescribed
in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the
lowest responsive and responsible bidder. Where specified in bidding
documents, factors such as discounts, transportation cost, and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts will only be used to determine the low bid when prior
experience indicates that such discounts are usually taken advantage of;
and
(E) Any or all bids may be rejected if there is a sound documented
reason.
(3) Procurement by competitive proposals. The technique of
competitive proposals is normally conducted with more than one source
submitting an offer, and either a fixed-price or cost-reimbursement type
contract is awarded. It is generally used when conditions are not
appropriate for the use of sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be publicized and identify all
evaluation factors and their relative importance. Any response to
publicized requests for proposals shall be honored to the maximum extent
practical;
(ii) Proposals will be solicited from an adequate number of qualified
sources;
(iii) Grantees and subgrantees will have a method for conducting
technical evaluations of the proposals received and for selecting
awardees;
(iv) Awards will be made to the responsible firm whose proposal is
most advantageous to the program, with price and other factors
considered; and
(v) Grantees and subgrantees may use competitive proposal procedures
for qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitors' qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation of
fair and reasonable compensation. The method, where price is not used
as a selection factor, can only be used in procurement of A/E
professional services. It cannot be used to purchase other types of
services though A/E firms are a potential source to perform the proposed
effort.
(4) Procurement by noncompetitive proposals is procurement through
solicitation of a proposal from only one source, or after solicitation
of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when the
award of a contract is infeasible under small purchase procedures,
sealed bids or competitive proposals and one of the following
circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation.
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is
determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the
projections of the data, and the evaluation of the specific elements of
costs and profit, is required.
(iii) Grantees and subgrantees may be required to submit the proposed
procurement to the awarding agency for pre-award review in accordance
with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business
enterprise and labor surplus area firms. (1) The grantee and subgrantee
will take all necessary affirmative steps to assure that minority firms,
women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's
business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small and
minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of the
Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let,
to take the affirmative steps listed in paragraphs (e)(2) (i) through
(v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must
perform a cost or price analysis in connection with every procurement
action including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular
procurement situation, but as a starting point, grantees must make
independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the
elements of his estimated cost, e.g., under professional, consulting,
and architectural engineering services contracts. A cost analysis will
be necessary when adequate price competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price resonableness can be established on the basis of a catalog
or market price of a commercial product sold in substantial quantities
to the general public or based on prices set by law or regulation. A
price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate
element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit rates
in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with Federal cost
principles (see 24.22). Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction
cost methods of contracting shall not be used.
(g) Awarding agency review. (1) Grantees and subgrantees must make
available, upon request of the awarding agency, technical specifications
on proposed procurements where the awarding agency believes such review
is needed to ensure that the item and/or service specified is the one
being proposed for purchase. This review generally will take place
prior to the time the specification is incorporated into a solicitation
document. However, if the grantee or subgrantee desires to have the
review accomplished after a solication has been developed, the awarding
agency may still review the specifications, with such review usually
limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on request make available for
awarding agency pre-award review procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates, etc.,
when:
(i) A grantee's or subgrantee's procurement procedures or operation
fails to comply with the procurement standards in this seciton; or
(ii) The procurement is expected to exceed $25,000 and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation; or
(iii) The procurement, which is expected to exceed $25,000, specifies
a ''brand name'' product; or
(iv) The proposed award over $25,000 is to be awarded to other than
the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract
or increases the contract amount by more than $25,000.
(3) A grantee or subgrantee will be exempt from the pre-award review
in paragraph (g)(2) of this section if the awarding agency determines
that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system
be reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis;
(ii) A grantee or subgrantee may self-certify its procurement system.
Such self-certification shall not limit the awarding agency's right to
survey the system. Under a self-certification procedure, awarding
agencies may wish to rely on written assurances from the grantee or
subgrantee that it is complying with these standards. A grantee or
subgrantee will cite specific procedures, regulations, standards, etc.,
as being in compliance with these requirements and have its system
available for review.
(h) Bonding requirements. For construction or facility improvement
contracts or subconstracts exceeding $100,000, the awarding agency may
accept the bonding policy and requirements of the grantee or subgrantee
provided the awarding agency has made a determination that the awarding
agency's interest is adequately protected. If such a determination has
not been made, the minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ''bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A ''performance bond'' is one executed in
connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ''payment bond'' is one executed in connection
with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(i) Contract provisions. A grantee's and subgrantee's contracts must
contain provisions in paragraph (i) of this section. Federal agencies
are permitted to require changes, remedies, changed conditions, access
and records retention, suspension of work, and other clauses approved by
the Office of Procurement Policy.
(1) Administrative, contractual, or legal remedies in instances where
contractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate (Contracts other than
small purchases).
(2) Termination for cause and for convenience by the grantee or
subgrantee including the manner by which it will be effected and the
basis for settlement (All contracts in excess of $10,000).
(3) Compliance with Executive Order 11246 of September 24, 1965
entitled ''Equal Employment Opportunity,'' as amended by Executive Order
11375 of October 13, 1967 and as supplemented in Department of Labor
regulations (41 CFR Chapter 60) (All construction contracts awarded in
excess of $10,000 by grantees and their contractors or subgrantees).
(4) Compliance with the Copeland ''Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations (29 CFR Part 3)
(All contracts and subgrants for construction or repair).
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) as
supplemented by Department of Labor regulations (29 CFR Part 5)
(Construction contracts in excess of $2,000 awarded by grantees and
subgrantees when required by Federal grant program legislation).
(6) Compliance with sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by grantees and subgrantees in excess of $2,000, and
in excess of $2,500 for other contracts which involve the employment of
mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining
to reporting.
(8) Notice of awarding agency requirements and regulations pertaining
to patent rights with respect to any discovery or invention which arises
or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to
copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor
agency, the Comptroller General of the United States, or any of their
duly authorized representatives to any books, documents, papers, and
records of the contractor which are directly pertinent to that specific
contract for the purpose of making audit, examination, excerpts, and
transcriptions.
(11) Retention of all required records for three years after grantees
or subgrantees make final payments and all other pending matters are
closed.
(12) Compliance with all applicable standards, orders, or
requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
Part 15) (Contracts, subcontracts, and subgrants of amounts in excess of
$100,000).
(13) Mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (Pub. L.
94-163).
15 CFR 24.37 Subgrants.
(a) States. States shall follow state law and procedures when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. States shall:
(1) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with 24.42 is placed in
every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially
to the same standards of timing and amount that apply to cash advances
by Federal agencies.
(b) All other grantees. All other grantees shall follow the
provisions of this part which are applicable to awarding agencies when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. Grantees shall:
(1) Ensure that every subgrant includes a provision for compliance
with this part;
(2) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
and
(3) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms, certain provisions of this part
do not apply to the award and administration of subgrants:
(1) Section 24.10;
(2) Section 24.11;
(3) The letter-of-credit procedures specified in Treasury Regulations
at 31 CFR Part 205, cited in 24.21; and
(4) Section 24.50.
15 CFR 24.37 Reports, Records, Retention, and Enforcement
15 CFR 24.40 Monitoring and reporting program performance.
(a) Monitoring by grantees. Grantees are responsible for managing
the day-to-day operations of grant and subgrant supported activities.
Grantees must monitor grant and subgrant supported activities to assure
compliance with applicable Federal requirements and that performance
goals are being achieved. Grantee monitoring must cover each program,
function or activity.
(b) Nonconstruction performance reports. The Federal agency may, if
it decides that performance information available from subsequent
applications contains sufficient information to meet its programmatic
needs, require the grantee to submit a performance report only upon
expiration or termination of grant support. Unless waived by the
Federal agency this report will be due on the same date as the final
Financial Status Report.
(1) Grantees shall submit annual performance reports unless the
awarding agency requires quarterly or semi-annual reports. However,
performance reports will not be required more frequently than quarterly.
Annual reports shall be due 90 days after the grant year, quarterly or
semi-annual reports shall be due 30 days after the reporting period.
The final performance report will be due 90 days after the expiration or
termination of grant support. If a justified request is submitted by a
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for unnecessary performance reports
may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief
information on the following:
(i) A comparison of actual accomplishments to the objectives
established for the period. Where the output of the project can be
quantified, a computation of the cost per unit of output may be required
if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original
and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in
prescribing performance reporting requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site
technical inspections and certified percentage-of-completion data are
relied on heavily by Federal agencies to monitor progress under
construction grants and subgrants. The Federal agency will require
additional formal performance reports only when considered necessary,
and never more frequently than quarterly.
(d) Significant developments. Events may occur between the scheduled
performance reporting dates which have significant impact upon the grant
or subgrant supported activity. In such cases, the grantee must inform
the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program
needs.
(f) Waivers, extensions. (1) Federal agencies may waive any
performance report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any
performance report from a subgrantee if the grantee will still be able
to meet its performance reporting obligations to the Federal agency.
15 CFR 24.41 Financial reporting.
(a) General. (1) Except as provided in paragraphs (a) (2) and (5) of
this section, grantees will use only the forms specified in paragraphs
(a) through (e) of this section, and such supplementary or other forms
as may from time to time be authorized by OMB, for:
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are
not used.
(2) Grantees need not apply the forms prescribed in this section in
dealing with their subgrantees. However, grantees shall not impose more
burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental
Federal agency instructions approved by OMB to the extend required under
the Paperwork Reduction Act of 1980 for use in connection with forms
specified in paragraphs (b) through (e) of this section. Federal
agencies may issue substantive supplementary instructions only with the
approval of OMB. Federal agencies may shade out or instruct the grantee
to disregard any line item that the Federal agency finds unnecessary for
its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original
and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to
expedite or contribute to the accuracy of reporting. Federal agencies
may accept the required information from grantees in machine usable
format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section if
not needed.
(7) Federal agencies may extend the due date of any financial report
upon receiving a justified request from a grantee.
(b) Financial Status Report -- (1) Form. Grantees will use Standard
Form 269 or 269A, Financial Status Report, to report the status of funds
for all nonconstruction grants and for construction grants when required
in accordance with 24.41(e)(2)(iii) of this section.
(2) Accounting basis. Each grantee will report program outlays and
program income on a cash or accrual basis as prescribed by the awarding
agency. If the Federal agency requires accrual information and the
grantee's accounting records are not normally kept on the accural basis,
the grantee shall not be required to convert its accounting system but
shall develop such accrual information through and analysis of the
documentation on hand.
(3) Frequency. The Federal agency may prescribe the frequency of the
report for each project or program. However, the report will not be
required more frequently than quarterly. If the Federal agency does not
specify the frequency of the report, it will be submitted annually. A
final report will be required upon expiration or termination of grant
support.
(4) Due date. When reports are required on a quarterly or semiannual
basis, they will be due 30 days after the reporting period. When
required on an annual basis, they will be due 90 days after the grant
year. Final reports will be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report -- (1) Form. (i) For grants
paid by letter or credit, Treasury check advances or electronic transfer
of funds, the grantee will submit the Standard Form 272, Federal Cash
Transactions Report, and when necessary, its continuation sheet,
Standard Form 272a, unless the terms of the award exempt the grantee
from this requirement.
(ii) These reports will be used by the Federal agency to monitor cash
advanced to grantees and to obtain disbursement or outlay information
for each grant from grantees. The format of the report may be adapted
as appropriate when reporting is to be accomplished with the assistance
of automatic data processing equipment provided that the information to
be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal
cash requirements may be required in the ''Remarks'' section of the
report.
(3) Cash in hands of subgrantees. When considered necessary and
feasible by the Federal agency, grantees may be required to report the
amount of cash advances in excess of three days' needs in the hands of
their subgrantees or contractors and to provide short narrative
explanations of actions taken by the grantee to reduce the excess
balances.
(4) Frequency and due date. Grantees must submit the report no later
than 15 working days following the end of each quarter. However, where
an advance either by letter of credit or electronic transfer of funds is
authorized at an annualized rate of one million dollars or more, the
Federal agency may require the report to be submitted within 15 working
days following the end of each month.
(d) Request for advance or reimbursement -- (1) Advance payments.
Requests for Treasury check advance payments will be submitted on
Standard Form 270, Request for Advance or Reimbursement. (This form
will not be used for drawdowns under a letter of credit, electronic
funds transfer or when Treasury check advance payments are made to the
grantee automatically on a predetermined basis.)
(2) Reimbursements. Requests for reimbursement under nonconstruction
grants will also be submitted on Standard Form 270. (For reimbursement
requests under construction grants, see paragraph (e)(1) of this
section.)
(3) The frequency for submitting payment requests is treated in
24.41(b)(3).
(e) Outlay report and request for reimbursement for construction
programs. (1) Grants that support construction activities paid by
reimbursement method.
(i) Requests for reimbursement under construction grants will be
submitted on Standard Form 271, Outlay Report and Request for
Reimbursement for Construction Programs. Federal agencies may, however,
prescribe the Request for Advance or Reimbursement form, specified in
24.41(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in 24.41(b)(3).
(2) Grants that support construction activities paid by letter of
credit, electronic funds transfer or Treasury check advance.
(i) When a construction grant is paid by letter of credit, electronic
funds transfer or Treasury check advances, the grantee will report its
outlays to the Federal agency using Standard Form 271, Outlay Report and
Request for Reimbursement for Construction Programs. The Federal agency
will provide any necessary special instruction. However, frequency and
due date shall be governed by 24.41(b) (3) and (4).
(ii) When a construction grant is paid by Treasury check advances
based on periodic requests from the grantee, the advances will be
requested on the form specified in 24.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in 24.41(b) for the Outlay Report and Request for
Reimbursement for Construction Programs.
(3) Accounting basis. The accounting basis for the Outlay Report and
Request for Reimbursement for Construction Programs shall be governed by
24.41(b)(2).
15 CFR 24.42 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and
programmatic records, supporting documents, statistical records, and
other records of grantees or subgrantees which are:
(i) Required to be maintained by the terms of this part, program
regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program
regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors
or subcontractors. For a requirement to place a provision concerning
records in certain kinds of contracts, see 24.36(i)(10).
(b) Length of retention period. (1) Except as otherwise provided,
records must be retained for three years from the starting date
specified in paragraph (c) of this section.
(2) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the
3-year period, the records must be retained until completion of the
action and resolution of all issues which arise from it, or until the
end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make
special arrangements with grantees and subgrantees to retain any records
which are continuously needed for joint use. The awarding agency will
request transfer of records to its custody when it determines that the
records possess long-term retention value. When the records are
transferred to or maintained by the Federal agency, the 3-year retention
requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period -- (1) General. When grant
support is continued or renewed at annual or other intervals, the
retention period for the records of each funding period starts on the
day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support
is continued or renewed quarterly, the retention period for each year's
records starts on the day the grantee submits its expenditure report for
the last quarter of the Federal fiscal year. In all other cases, the
retention period starts on the day the grantee submits its final
expenditure report. If an expenditure report has been waived, the
retention period starts on the day the report would have been due.
(2) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition or replacement or transfer at the direction of the awarding
agency.
(3) Records for income transactions after grant or subgrant support.
In some cases grantees must report income after the period of grant
support. Where there is such a requirement, the retention period for
the records pertaining to the earning of the income starts from the end
of the grantee's fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other
computation is required to be submitted to the Federal Government (or to
the grantee) to form the basis for negotiation of the rate, then the
3-year retention period for its supporting records starts from the date
of such submission.
(ii) If not submitted for negotiation. If the proposal, plan, or
other computation is not required to be submitted to the Federal
Government (or to the grantee) for negotiation purposes, then the 3-year
retention period for the proposal plan, or computation and its
supporting records starts from end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
(d) Substitution of microfilm. Copies made by microfilming,
photocopying, or similar methods may be substituted for the original
records.
(e) Access to records -- (1) Records of grantees and subgrantees.
The awarding agency and the Comptroller General of the United States, or
any of their authorized representatives, shall have the right of access
to any pertinent books, documents, papers, or other records of grantees
and subgrantees which are pertinent to the grant, in order to make
audits, examinations, excerpts, and transcripts.
(2) Expiration of right of access. The rights of access in this
section must not be limited to the required retention period but shall
last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of
Information Act (5 U.S.C. 552) does not apply to records Unless required
by Federal, State, or local law, grantees and subgrantees are not
required to permit public access to their records.
15 CFR 24.43 Enforcement.
(a) Remedies for noncompliance. If a grantee or subgrantee
materially fails to comply with any term of an award, whether stated in
a Federal statute or regulation, an assurance, in a State plan or
application, a notice of award, or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the
circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit
for) all or part of the cost of the activity or action not in
compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding
agency will provide the grantee or subgrantee an opportunity for such
hearing, appeal, or other administrative proceeding to which the grantee
or subgrantee is entitled under any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of grantee or
subgrantee resulting from obligations incurred by the grantee or
subgrantee during a suspension or after termination of an award are not
allowable unless the awarding agency expressly authorizes them in the
notice of suspension or termination or subsequently. Other grantee or
subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred by
the grantee or subgrantee before the effective date of suspension or
termination, are not in anticipation of it, and, in the case of a
termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude grantee or subgrantee from being subject to
''Debarment and Suspension'' under E.O. 12549 (see 24.35).
15 CFR 24.44 Termination for convenience.
Except as provided in 24.43 awards may be terminated in whole or in
part only as follows:
(a) By the awarding agency with the consent of the grantee or
subgrantee in which case the two parties shall agree upon the
termination conditions, including the effective date and in the case of
partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the
awarding agency, setting forth the reasons for such termination, the
effective date, and in the case of partial termination, the portion to
be terminated. However, if, in the case of a partial termination, the
awarding agency determines that the remaining portion of the award will
not accomplish the purposes for which the award was made, the awarding
agency may terminate the award in its entirety under either 24.43 or
paragraph (a) of this section.
15 CFR 24.44 Subpart D -- After-The-Grant Requirements
15 CFR 24.50 Closeout.
(a) General. The Federal agency will close out the award when it
determines that all applicable administrative actions and all required
work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of
the grant, the grantee must submit all financial, performance, and other
reports required as a condition of the grant. Upon request by the
grantee, Federal agencies may extend this timeframe. These may include
but are not limited to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request for
Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with 24.32(f), a grantee must submit an inventory of
all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable and request disposition
instructions from the Federal agency of property no longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after
receipt of reports in paragraph (b) of this section, make upward or
downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal agency will make prompt
payment to the grantee for allowable reimbursable costs.
(2) The grantee must immediately refund to the Federal agency any
balance of unobligated (unencumbered) cash advanced that is not
authorized to be retained for use on other grants.
15 CFR 24.51 Later disallowances and adjustments.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds on
the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions;
(c) Records retention as required in 24.42;
(d) Property management requirements in 24.31 and 24.32; and
(e) Audit requirements in 24.26.
15 CFR 24.52 Collection of amounts due.
(a) Any funds paid to a grantee in excess of the amount to which the
grantee is finally determined to be entitled under the terms of the
award constitute a debt to the Federal Government. If not paid within a
reasonable period after demand, the Federal agency may reduce the debt
by:
(1) Making an adminstrative offset against other requests for
reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR Chapter II). The
date from which interest is computed is not extended by litigation or
the filing of any form of appeal.
15 CFR 24.52 Subpart E -- Entitlement (Reserved)
15 CFR 24.52 PART 25 -- PROGRAM
Sec.
25.1 Basis and purpose.
25.2 Definitions.
25.3 Basis for civil penalties and assessments.
25.4 Investigation.
25.5 Review by the reviewing official.
25.6 Prerequisites for issuing a complaint.
25.7 Complaint.
25.8 Service of complaint.
25.9 Answer.
25.10 Default upon failure to file an answer.
25.11 Referral of complaint and answer to the ALJ.
25.12 Notice of hearing.
25.13 Parties to the hearing.
25.14 Separation of functions.
25.15 Ex parte contacts.
25.16 Disqualification of reviewing official or ALJ.
25.17 Rights of parties.
25.18 Authority of the ALJ.
25.19 Prehearing conferences.
25.20 Disclosure of documents.
25.21 Discovery.
25.22 Exchange of witness lists, statements, and exhibits.
25.23 Subpoena for attendance at hearing.
25.24 Protective order.
25.25 Fees.
25.26 Form, filing and service of papers.
25.27 Computation of time.
25.28 Motions.
25.29 Sanctions.
25.30 The hearing and burden of proof.
25.31 Determining the amount of penalties and assessments.
25.32 Location of hearing.
25.33 Witnesses.
25.34 Evidence.
25.35 The record.
25.36 Post-hearing briefs.
25.37 Initial decision.
25.38 Reconsideration of initial decision.
25.39 Appeal to authority head.
25.40 Stays ordered by the Department of Justice.
25.41 Stay pending appeal.
25.42 Judicial review.
25.43 Collection of civil penalties and assessments.
25.44 Right to administrative offset.
25.45 Deposit in Treasury of United States.
25.46 Compromise or settlement.
25.47 Limitations.
Authority: Secs. 6101-6104, Pub. L. 99-509, 100 Stat. 1874 (31
U.S.C. 3801-3812).
Source: 55 FR 47854, Nov. 16, 1990, unless otherwise noted.
15 CFR 24.52 Fraud Civil Remedies
15 CFR 25.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Public Law 99-509, section 6101-6104, 100 Stat. 1874 (October
21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the
statute requires each authority head to promulgate regulations necessary
to implement the provisions of the statute.
(b) Purpose. This part (1) establishes administrative procedures for
imposing civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to authorities or
to their agents, and (2) specifies the hearing and appeal rights of
persons subject to allegations of liability for such penalties and
assessments.
15 CFR 25.2 Definitions.
ALJ means an Administrative Law Judge in the authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5
U.S.C. 3344.
Authority means the Department of Commerce.
Authority head means the Secretary of the Department of Commerce, or
designee.
Benefit means, except as the context otherwise requires, anything of
value, including but not limited to any advantage, preference,
privilege, license, permit, favorable decision, ruling, status, or loan
guarantee.
Claim means any request, demand, or submission --
(a) Made to the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(b) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority --
(1) For property or services if the United States --
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such
property or services; or
(iii) Will reimburse such recipient or party for the purchase of such
property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States --
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
Compliant means the administrative complaint served by the reviewing
official on the respondent under 25.7.
Department means the Department of Commerce.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
25.10 or 25.37, and includes a revised initial decision issued following
a remand or a motion for reconsideration.
Investigating official means the Inspector General of the Department
of Commerce or an officer or employee of the Office of the Inspector
General designated by the Inspector General and serving in a position
for which the rate of basic pay is not less than the minimum rate of
basic pay for grade GS-16 under the General Schedule.
Knows or has reason to know, means that a person, with respect to a
claim or statement --
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(b) Acts in deliberative ignorance of the truth or falsity of the
claim or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim
or statement.
Makes, wherever it appears, shall include the terms presents,
submits, and causes to be made, presented, or submitted. As the context
requires, making or made, shall likewise include the corresponding forms
of such terms.
Person means any individual, partnership, corporation, association,
or private organization and includes the plural of that term.
Representative means any attorney who is a member in good standing of
the bar of any State, Territory, or possession of the United States or
of the District of Columbia or the Commonwealth of Puerto Rico.
Respondent means any person alleged in a complaint under 25.7 to be
liable for a civil penalty or assessment under 25.3.
Reviewing official means the General Counsel of the Department or his
or her designee who is serving in a position for which the rate of basic
pay is not less than the minimum rate of basic pay for grade GS-16 under
the General Schedule.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made --
(a) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for) --
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from,
the authority, or any State, political subdivision of a State, or
other party, if the United States Government provides any portion of the
money or property under such contract or for such grant, loan, or
benefit, or if the Government will reimburse such State, political
subdivision, or party for any portion of the money or property under
such contract or for such grant, loan, or benefit.
15 CFR 25.3 Basis for civil penalties and assessments.
(a) Claims.
(1) Any person who makes a claim that the person knows or has reason
to know --
(i) Is false, ficitious, or fraudulent;
(ii) Includes, or is supported by, any written statement which
asserts a material fact which is false, fictitious, or fraudulent;
(iii) Includes, or is supported by, any written statement that --
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission;
and
(C) Is a statement in which the person making such statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed,
shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such claim.
(2) Each voucher, invoice, claim form, or other individual request or
demand for property, services, or money constitutes a separate claim.
(3) A claim shall be considered made to the authority, recipient, or
party when such claim is actually made to an agent, fiscal intermediary,
or other entity, including any State or political subdivision thereof,
acting for or on behalf of the authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil
penalty regardless of whether such property, services, or money is
actually delivered or paid.
(5) If the Government has made payment (including transferred
property or provided services) or a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section shall also be subject to
an assessment of not more than twice the amount of such claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of the section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim.
(b) Statements. (1) Any person who makes a written statement that --
(i) The person knows or has reason to know --
(A) Asserts a material fact which is false, fictitious, or
fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement,
shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement shall be considered made to the authority when such
statement is actually made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or on behalf of the authority.
(c) No proof of specific intent to defraud is required to establish
liability under this section.
(d) In any case in which it is determined that more than one person
is liable for making a claim or statement under this section, each such
person may be held liable for a civil penalty.
(e) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the Government
has made payment (including transferred property or provide services),
an assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
15 CFR 25.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted --
(1) The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
(2) The investigating official may designate a person to act on his
or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender to
the investigating official, or the person designated to receive the
documents, a certification that --
(i) The documents sought have been produced;
(ii) Such documents are not available and the reasons therefore; or
(iii) Such documents, suitably identified, have been withheld based
upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the
Program Fraud Civil Remedies Act may be warranted, the investigating
official shall submit a report containing the findings and conclusions
of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
defer or postpone a report or referral to avoid interference with a
criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
15 CFR 25.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under
25.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under 25.3, the reviewing
official shall transmit to the Attorney General a written notice of the
reviewing official's intention to issue a complaint under 25.7.
(b) Such notice shall include --
(1) A statement of the reviewing official's reasons for issuing a
complaint;
(2) A statement specifying the evidence that supports the allegations
of liability;
(3) A description of the claims or statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money, or the value of property,
services, or other benefits, requested or demanded in violation of 25.3
of this part;
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments. Such a statement may
be based upon information then known or an absence of any information
indicating that the person may be unable to pay such an amount.
15 CFR 25.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under 25.7 only if
--
(1) The Department of Justice approved the issuance of a complaint in
a written statement described in 31 U.S.C. 3803(b)(1), and
(2) In the case of allegations of liability under 25.3(a) with
respect to a claim, the reviewing official determines that, with respect
to such claim or a group of related claims submitted at the same time
such claim is submitted (as defined in paragraph (b) of this section),
the amount of money, or the value of property or services, demanded or
requested in violation of 25.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section shall be construed to limit the reviewing
official's authority to join in a single complaint against a person
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
15 CFR 25.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the
reviewing official may serve a complaint on the respondent, as provided
in 25.8.
(b) The complaint shall state --
(1) The allegations of liability against the respondent, including
the statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
respondent may be held liable;
(3) Instructions for filing an answer to request a hearing, including
a specific statement of the respondent's right to request a hearing by
filing an answer and to be represented by a representative; and
(4) That failure to file an answer within 30 days of service of the
complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal.
(c) At the same time the reviewing official serves the complaint, he
or she shall serve the respondent with a copy of these regulations.
15 CFR 25.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure.
(b) Proof of service, stating the name of address of the person on
whom the complaint was served, and the manner and date of service, may
be made by --
(1) Affidavit of the individual making service;
(2) An acknowledged United States Postal Service return receipt card;
or
(3) Written acknowledgment of the respondent or his or her
representative.
15 CFR 25.9 Answer.
(a) The respondent may request a hearing by filing an answer with the
reviewing official within 30 days of service of the complaint. An
answer shall be deemed to be a request for hearing.
(b) In the answer, the respondent --
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the respondent intends to rely;
(3) May state any reasons why the respondent contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state the name, address, and telephone number of the person
authorized by the respondent to act as respondent's representative, if
any.
15 CFR 25.10 Default upon failure to file an answer.
(a) If the respondent does not file an answer within the time
prescribed in 25.9(a), the reviewing official may refer the complaint
to the ALJ along with the proof of service, as provided in 25.8(b).
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on the respondent in the manner prescribed in 25.8, a notice that an
initial decision will be issued under this section.
(c) The ALJ shall assume the facts alleged in the complaint to be
true and, if such facts establish liability under 25.3, the ALJ shall
issue an initial decision imposing the maximum amount of penalties and
assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file
a timely answer, the respondent waives any right to further review of
the penalties and assessments imposed under paragraph (c) of this
section, and the initial decision shall become final binding upon the
parties 30 days after it is issued.
(e) If, before such an initial decision becomes final, the respondent
files motion with the ALJ seeking to reopen on the grounds that
extraordinary circumstances prevented the respondent from filing an
answer, the initial decision shall be stayed pending the ALJ's decision
on the motion.
(f) If, on such motion, the respondent can demonstrate extraordinary
circumstances excusing the failure to file a timely answer, the ALJ
shall withdraw the initial decision in paragraph (c) of this section, if
such a decision has been issued, and shall grant the respondent an
opportunity to answer the complaint.
(g) A decision of the ALJ denying a respondent's motion under
paragraph (e) of this section is not subject to reconsideration under
25.38.
(h) The respondent may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal shall stay the initial decision
until the authority head decides the issue.
(i) If the respondent files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(j) The authority head shall decide expeditiously whether
extraordinary circumstances excuse the respondent's failure to file a
timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances
excused the respondent's failure to file a timely answer, the authority
head shall remand the case of the ALJ with instructions to grant the
respondent an opportunity to answer.
(l) If the authority head decides that the respondent's failure to
file a timely answer is not excused, the authority head shall reinstate
the initial decision of the ALJ, which shall become final and binding
upon the parties 30 days after the authority head issues such decision.
15 CFR 25.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.
15 CFR 25.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the respondent in the manner
prescribed by 25.8. At the same time, the ALJ shall send a copy of such
notice to the representative for the Government.
(b) Such notice shall include --
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of
the Government and of the respondent, if any; and
(6) Such other matters as the ALJ deems appropriate.
15 CFR 25.13 Parties to the hearing.
(a) The parties to the hearing shall be the respondent and the
authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
15 CFR 25.14 Separation of functions.
(a) The investigating official, the reviewing official, and any
employee or agent of the authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case --
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the authority head, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b) The ALJ shall not be responsible to, or subject to the
supervision or direction of, the investigating official or the reviewing
official.
(c) The reviewing official shall, after consulting with the Inspector
General, designate the representative for the Government, who shall be
an attorney with either the Office of General Counsel or the Office of
the Inspector General. The reviewing official's decision is final.
15 CFR 25.15 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
15 CFR 25.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of a
reviewing official or an ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It shall be accompanied by a certificate of the representative
of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with paragraph (f) of this section.
(f)(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may
determine the matter only as part of his or her review of the initial
decision upon appeal, if any.
15 CFR 25.17 Rights of parties.
Except as otherwise limited by this part, all parties may --
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of
the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
15 CFR 25.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to --
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or
regulations invalid.
15 CFR 25.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one
prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
15 CFR 25.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the respondent
may review any relevant and material documents, transcripts, records,
and other materials that related to the allegations set out in the
complaint and upon which the findings and conclusions of the
investigating official under 25.4(b) are based, unless such documents
are subject to a privilege under Federal law. Upon payment of fees for
duplication, the respondent may obtain copies of such documents.
(b) Upon written request to the reviewing official, the respondent
also may obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in 25.5 is not discoverable under any
circumstances.
(d) The respondents may file a motion to compel dosclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
25.9.
15 CFR 25.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and 25.22 and 25.23, the term
''documents'' includes information, documents, reports, answers,
records, accounts, papers, and other data and documentary evidence.
Nothing contained herein shall be interpreted to require the creation of
a document.
(c) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ shall regulate the timing of
discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a
motion with the ALJ. Such a motion shall be accompanied by a copy of
the requested discovery, or in the case of depositions, a summary of the
scope of the proposed deposition.
(2) Within two days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in 25.34.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought --
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
25.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ
shall issue a subpoena for the deponent, which may require the deponent
to produce documents. The subpoena shall specify the time and place at
which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the
manner prescribed in 25.8.
(3) The deponent may file with the ALJ a motion to quash the subpoena
or a motion for a protective order within ten days of service.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
15 CFR 25.22 Exchange of witness lists, statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties shall exchange witness lists, copies
of prior statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written statements that the
party intends to offer in lieu of live testimony in accordance with
25.33(b). At the time the above documents are exchanged, any party that
intends to rely on the transcript of deposition testimony in lieu of
live testimony at the hearing, if permitted by the ALJ, shall provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.
15 CFR 25.23 Subpoena for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena shall file a written request therefore
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ for good cause shown: Such request shall
specify any documents to be produced and shall designate the witnesses
and describe the address and location thereof with sufficient
particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in 25.8. A subpoena on a party or upon an individual under
the control of a party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within ten days after
service or on or before the time specified in the subpoena for
compliance if it is less than ten days after service.
15 CFR 25.24 Protective order.
(a) A party of a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as direct by the
ALJ.
15 CFR 25.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage shall accompany the subpoena when served,
except that when a subpoena is issued on behalf of the Department of
Commerce, a check for witness fees and mileage need not accompany the
subpoena.
15 CFR 25.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include an original
and one copy.
(2) Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., motion to quash
subpoena).
(3) Every pleading and paper shall be signed by, and shall contain
the address and telephone number of, the party of the person on whose
behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(b) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than the complaint or
notice of hearing shall be made by deliverying or mailing a copy to the
party's last known address. When a party is represented by a
representative, service shall be made upon such representative in lieu
of the actual party.
(c) Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
15 CFR 25.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal government,
in which event it includes the next business day.
(b) When the period of time allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal government shall be excluded from the computation.
(c) Where a document has been served or issued by mail, an additional
five days will be added to the time permitted for any response.
15 CFR 25.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with the ALJ and served
on all other parties.
(b) Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for filing
responses thereto has expired, except upon consent of the parties or
following a hearing on the motion, but may overrule or deny such motion
without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all
outstanding motions prior to the beginning of the hearing.
15 CFR 25.29 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative, for --
(1) Failing to comply with an order, rule, or procedure governing the
proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate to
the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may --
(1) Draw an inference in favor of the requesting party with regard to
the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part
commenced by service of a notice of hearing, the ALJ may dismiss the
action or may issue an initial decision imposing penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
15 CFR 25.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to
determine whether the respondent is liable for a civil penalty or
assessment under 25.3 and, if so, the appropriate amount of any such
civil penalty or assessment considering any aggravating or mitigating
factors.
(b) The authority shall prove respondent's liability and any
aggravating factors by a preponderance of the evidence.
(c) The respondent shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise ordered
by the ALJ for good cause shown.
15 CFR 25.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the authority head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted ordinarily double
assessment, in lieu of damages, and a significant civil penalty should
be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, or fraudulent claims or
statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the respondent's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations, including particularly the impact
on the intended beneficiaries of such program;
(8) Whether the respondent has engaged in a pattern of the same or
similar misconduct;
(9) Whether the respondent attempted to conceal the misconduct;
(10) The degree to which the respondent has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
respondent, the extent to which the respondent's practices fostered or
attempted to preclude such misconduct;
(12) Whether the respondent cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the respondent assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the respondent's sophistication with respect to it, including the extent
of the respondent's prior participation in the program or in similar
transactions;
(15) Whether the respondent has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
State directly or indirectly; and
(16) The need to deter the respondent and others from engaging in the
same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or
the authority head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
15 CFR 25.32 Location of hearing.
(a) The hearing may be held --
(1) In any judicial district of the United States in which the
respondent resides or transacts business;
(2) In any judicial district of the United States in which the claim
or statement in issue was made; or
(3) In such other place as may be agreed upon by the respondent and
the ALJ.
(b) Each party shall have the opportunity to present arguments with
respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by
the ALJ.
15 CFR 25.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at
the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. Any such written statements
must be provided to all other parties along with the last known address
of such witness, in a manner which allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written statements of witnesses proposed to testify at the hearing
and deposition transcripts shall be exchanged as provided in 25.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to --
(1) Make the interrogation and presentation effective for the
ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceeding without regard to the scope of his or
her direct examination. To the extent permitted by the ALJ,
cross-examination on matters outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of --
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party designated by the party's representative; or
(3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
15 CFR 25.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ shall not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g., to exclude unreliable
evidence.
(c) The ALJ shall exclude irrelevant and inmaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses
and evidence.
(h) All documents and other evidence offered or taken for the record
shall be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to 25.24.
15 CFR 25.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted
at the hearing, and all papers and requests filed in the proceeding
constitute the record for the decision by the ALJ and the authority
head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to 25.24.
15 CFR 25.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ shall fix the
time for filing such briefs, not to exceed 60 days from the date the
parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.
15 CFR 25.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record,
which shall contain findings of fact, conclusions of law, and the amount
of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the
following issues:
(1) Whether the claims or statements identified in the complaint, or
any portions thereof, violate 25.3.
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in 25.31.
(c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permittted) has expired. The ALJ shall as the same
time serve all respondents with a statement describing the right of any
respondent determined to be liable for a civil penalty or assessment to
file a motion for reconsideration with the ALJ or a notice of appeal
with the authority head. If the ALJ fails to meet the deadline
contained in this paragraph, he or she shall notify the parties of the
reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the
authority head, or a motion for reconsideration of the initial decision
is timely filed, the initial decision shall constitute the final
decision of the authority head and shall be final and binding on the
parties 30 days after it is issued by the ALJ.
15 CFR 25.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been
erroneously decided and the nature of the alleged errors. Such motion
shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it
or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final decision of the authority head and
shall be final and binding on the parties 30 days after the ALJ denies
the motion, unless the initial decision is timely appealed to the
authority head in accordance with 25.39.
(g) If the ALJ issues a revised initial decision, that decision shall
constitute the final decision of the authority head and shall be final
and binding on the parties 30 days after it is issued, unless it is
timely appealed to the authority head in accordance with 25.39.
15 CFR 25.39 Appeal to authority head.
(a) Any respondent who has filed a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal such decision to the authority head by filing a
notice of appeal with the authority head in accordance with this
section.
(b) (1) No notice of appeal may be filed until the time period for
filing a motion for reconsideration under 25.38 has expired.
(2) If a motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The authority head may extend the initial 30 day period for an
additional 30 days if the respondent files with the authority head a
request for an extension within the initial 30 day period and shows good
cause.
(c) If the respondent files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(d) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting the
exceptions.
(e) The representative for the Government may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision, the authority head shall not
consider any objection that was not raised before the ALJ unless a
demonstration is made of extraordinary circumstances causing the failure
to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there was reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the ALJ for consideration of such additional evidence.
(j) The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment determined by the ALJ in any
initial decision.
(k) The authority head shall promptly serve each party to the appeal
with a copy of the decision of the authority head and a statement
describing the right of any person determined to be liable for a penalty
or assessment to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a respondent has exhausted all administrative remedies under
this part and within 60 days after the date on which the authority head
serves the respondent with a copy of the authority head's decision, a
determination that a respondent is liable under 25.3 is final and is
not subject to judicial review.
15 CFR 25.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the authority head a
written finding that continuation of the administrative process
described in this part with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process and it shall be resumed only upon receipt of the written
authorization of the Attorney General.
15 CFR 25.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of
the authority head.
15 CFR 25.42 Judicial review.
Section 3805 of title 31, United States Code, authorized judicial
review by an appropriate United States District Court of a final
decision of the authority head imposing penalties or assessments under
this part and specifies the procedures for such review.
15 CFR 25.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize
actions for collection of civil penalties and assessments imposed under
this part and specify the procedures for such actions.
15 CFR 25.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under 25.42 and 25.43, or any
amount agreed upon in a compromise or settlement under 25.46, may be
collected by administrative offset under 31 U.S.C. 3716, except that an
administrative offset may not be made under this subsection against a
refund of an overpayment of Federal taxes, then or later owing by the
United States to the respondent.
15 CFR 25.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
15 CFR 25.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the ALJ issues an initial decision. If the designated
representative of the Government is not with the Office of General
Counsel, the representative shall forward all settlement offers to the
reviewing official and cannot negotiate a compromise or settlement with
the respondent except as directed by the reviewing official.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any review
under 25.42 or during the pendency of any action to collect penalties
and assessments under 25.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
25.42 or of any action to recover penalties and assessments under 31
U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the
reviewing official, the authority head, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
15 CFR 25.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in 25.8 within 6 years after the date
on which such claim or statement is made.
(b) If the respondent fails to file a timely answer, service of a
notice under 25.10(b) shall be deemed a notice of hearing for purposes
of this section.
(c) The statute of limitations may be extended by agreement of the
parties.
15 CFR 25.47 Pt. 26
15 CFR 25.47 PART 26 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
15 CFR 25.47 Subpart A -- General
Sec.
26.100 Purpose.
26.105 Definitions.
26.110 Coverage.
26.115 Policy.
15 CFR 25.47 Subpart B -- Effect of Actions
26.200 Debarment or suspension.
26.205 Ineligible persons.
26.210 Voluntary exclusion.
26.215 Exception provision.
26.220 Continuation of covered transactions.
26.225 Failure to adhere to restrictions.
15 CFR 25.47 Subpart C -- Debarment
26.300 General.
26.305 Cause for debarment.
26.310 Procedures.
26.311 Investigation and referral.
26.312 Notice of proposed debarment.
26.313 Opportunity to contest proposed debarment.
26.314 Debarring official's decision.
26.315 Settlement and voluntary exclusion.
26.320 Period of debarment.
26.325 Scope of debarment.
15 CFR 25.47 Subpart D -- Suspension
26.400 General.
26.405 Causes for suspension.
26.410 Procedures.
26.411 Notice of suspension.
26.412 Opportunity to contest suspension.
26.413 Suspending official's decision.
26.415 Period of suspension.
26.420 Scope of suspension.
15 CFR 25.47 Subpart E -- Responsibilities of GSA, Agency and
Participants
26.500 GSA Responsibilities.
26.505 Department of Commerce. responsibilities
26.510 Participants' responsibilities.
15 CFR 25.47 Subpart F -- Drug-Free Workplace Requirements (Grants)
26.600 Purpose.
26.605 Definitions.
26.610 Coverage.
26.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
26.620 Effect of violation.
26.625 Exception provision.
26.630 Certification requirements and procedures.
26.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
Appendix A to Part 26 -- Certification Regarding Debarment,
Suspension, and Other Responsibility Matters -- Primary Covered
Transactions
Appendix B to Part 26 -- Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Covered
Transactions
Appendix C to Part 26 -- Certification Regarding Drug-Free Workplace
Requirements
Authority: Executive Order 12549; Sec. 5151-5160 of the Drug-Free
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C.
701 et seq); 5 U.S.C. 301.
Source: 53 FR 19177, 19204, May 26, 1988, unless otherwise noted.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21679, May 25, 1990.
Editorial Note: For additional information, see related documents
published at 52 FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and
53 FR 34474, September 6, 1988.
15 CFR 25.47 Subpart A -- General
15 CFR 26.100 Purpose.
(a) Executive Order 12549 provides that, to the extent permitted by
law, Executive departments and agencies shall participate in a
governmentwide system for nonprocurement debarment and suspension. A
person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of Executive Order 12549
and the guidelines promulgated by the Office of Management and Budget
under section 6 of the Executive order by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended participants,
participants declared ineligible (see definition of ''ineligible'' in
26.105(i)), and participants who have voluntarily excluded themselves
from participation in covered transactions
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
15 CFR 26.105 Definitions.
(a) Adequate evidence. Information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(b) Affiliate. Persons are affiliates of each another if, directly
or indirectly, either one controls or has the power to control the
other, or, a third person controls or has the power to control both.
Indicia of control include, but are not limited to: interlocking
management or ownership, identity of interests among family members,
shared facilities and equipment, common use of employees, or a business
entity organized following the suspension or debarment of a person which
has the same or similar management, ownership, or principal employees as
the suspended, debarred, ineligible, or voluntarily excluded person.
(c) Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
(d) Civil judgment. The disposition of a civil action by any court
of competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability
under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
(e) Conviction. A judgment of conviction of a criminal offense by
any court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
(f) Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ''debarred.''
(g) Debarring official. An official authorized to impose debarment.
The debarring official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(h) Indictment. Indictment for a criminal offense. An information
or other filing by competent authority charging a criminal offense shall
be given the same effect as an indictment.
(i) Ineligible. Excluded from participation in Federal
nonprocurement programs pursuant to a determination of ineligibility
under statutory, executive order, or regulatory authority, other than
Executive Order 12549 and its agency implementing regulations; for
exemple, excluded pursuant to the Davis-Bacon Act and its implementing
regulations, the equal employment opportunity acts and executive orders,
or the environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
(j) Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State of local
government or quasi-governmental authority is a party. The term
includes appeals from such proceedings.
(k) Nonprocurement List. The portion of the List of Parties Excluded
from Federal Procurement or Nonprocurement Programs complied, maintained
and distributed by the General Services Administration (GSA) containing
the names and other information about persons who have been debarred,
suspended, or voluntarily excluded under Executive Order 12549 and these
regulations, and those who have been determined to be ineligible.
(l) Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have
been received by the addressee five days after being properly sent to
the last address known by the agency.
(m) Participant. Any person who submits a proposal for, enters into,
or reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
(n) Person. Any individual, corporation, partnership, association,
unit of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
(o) Preponderance of the evidence. Proof by information that,
compared with that opposing it, leads to the conclusion that the fact at
issue is more probably true than not.
(p) Principal. Officer, director, owner, partner, key employee, or
other person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(1) Principal investigators.
(q) Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
(r) Respondent. A person against whom a debarment or suspension
action has been initiated.
(s) State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the
State government if it has a written determination from a State
government that such State considers that instrumentality to be an
agency of the State government.
(t) Suspending official. An official authorized to impose
suspension. The suspending official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(u) Suspension. An action taken by a suspending official in
accordance with these regulations that immediately excludes a person
from participating in covered transactions for a temporary period,
pending completion of an investigation and such legal, debarment, or
Program Fraud Civil Remedies Act proceedings as may ensue. A person so
excluded is ''suspended.''
(v) Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
15 CFR 26.110 Coverage.
(a) These regulations apply to all persons who have participated, are
currently participating or may reasonably be expected to participate in
transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ''covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(3) Department of Commerce covered transactions. These Department of
Commerce regulations apply to the Department's domestic assistance
covered transactions (whether by a Federal agency, recipient,
subrecipient, or intermediary) including, except as noted in paragraph
(a)(2) of this section: grants, cooperative agreements, scholarships,
fellowships, loans, loan guarantees, subsidies, insurance, payments for
specified use, and donation agreement subawards, subcontracts and
transactions at any tier that are charges as direct or indirect costs,
regardless of type (including subtier awards under awards which are
statutory entitlement or mandatory awards).
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ''Effect of Action,'' 26.200, ''Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
26.110(a). Sections 26.325, ''Scope of debarment,'' and 26.420, ''Scope
of suspension,'' govern the extent to which a specific participant or
organizational elements of a participant would be automatically included
within a debarment or suspension action, and the conditions under which
affiliates or persons associated with a participant may also be brought
within the scope of the action.
(c) Relationship to Federal procurement activities. Debarment and
suspension of Federal procurement contractors and subcontractors under
Federal procurement contracts are covered by the Federal Acquisition
Regulation (FAR), 48 CFR Subpart 9.4.
(53 FR 19177, 19204, May 26, 1988, as amended at 53 FR 19178, May 26,
1988)
15 CFR 26.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
15 CFR 26.115 Subpart B -- Effect of Action
15 CFR 26.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the executive branch of the Federal Government for the period
of their debarment or suspension. Accordingly, no agency shall enter
into primary covered transactions with such debarred or suspended
persons during such period, except as permitted pursuant to 26.215.
(b) Loser tier covered transactions. Except to the extent prohibited
by law, persons who have been debarred or suspended shall be excluded
from participating as either participants or principals in all lower
tier covered transactions (see 26.110(a)(1)(ii)) for the period of
their debarment or suspension.
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for:
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
15 CFR 26.205 Ineligible persons.
Persons who are ineligible, as defined in 26.105(i), are excluded in
accordance with the applicable statutory, executive order, or regulatory
authority.
15 CFR 26.210 Voluntary exclusion.
Persons who accept voluntary exclusions under 26.315 are excluded in
accordance with the terms of their settlements. Department of Commerce
shall, and participants may, contact the original action agency to
ascertain the extent of the exclusion.
15 CFR 26.215 Exception provision.
Department of Commerce may grant an exception permitting a debarred,
suspended, or voluntarily excluded person to participate in a particular
covered transaction upon a written determination by the agency head or
an authorized designee stating the reason(s) for deviating from the
Presidential policy established by Executive Order 12549 and 26.200 of
this rule. However, in accordance with the President's stated intention
in the Executive order, exceptions shall be granted only infrequently.
Exceptions shall be reported in accordance with 26.505(a).
15 CFR 26.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, determination of
ineligibility, or voluntary exclusion of any person by an agency,
agencies and participants may continue covered transactions in existence
at the time the person was debarred, suspended, declared ineligible, or
voluntarily excluded. A decision as to the type of termination action,
if any, to be taken should be made only after thorough review to ensure
the propriety of the proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, ineligible, or voluntarily excluded, except as
provided in 26.215.
15 CFR 26.225 Failure to adhere to restrictions.
Except as permitted under 26.215 or 26.220 of these regulations, a
participant shall not knowingly do business under a covered transaction
with a person who is debarred or suspended, or with a person who is
ineligible for or voluntarily excluded from that covered transaction.
Violation of this restriction may result in disallowance of costs,
annulment or termination of award, issuance of a stop work order,
debarment or suspension, or other remedies, as appropriate. A
participant may rely upon the certification of a prospective participant
in a lower tier covered transaction that it and its principals are not
debarred, suspended, ineligible, or voluntarily excluded from the
covered transaction (see Appendix B), unless it knows that the
certification is erroneous. An agency has the burden of proof that such
participant did knowingly do business with such a person.
15 CFR 26.225 Subpart C -- Debarment
15 CFR 26.300 General.
The debarring official may debar a person for any of the causes in
26.305, using procedures established in 26.310 through 26.314. The
existence of a cause for debarment, however, does not necessarily
require that the person be debarred; the seriousness of the person's
acts or omissions and any mitigating factors shall be considered in
making any debarment decision.
15 CFR 26.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
26.300 through 26.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including those
proscribing price fixing between competitors, allocation of customers
between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
Subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in 26.215 or 26.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under 26.315 or of any settlement of a debarment
or suspension action; or
(5) Violation of any requirement of Subpart F of this part, relating
to providing a drug-free workplace, as set forth in XX.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
(53 FR 19177, 19204, May 26, 1988, as amended at 54 FR 4950 and 4954,
Jan. 31, 1989)
15 CFR 26.310 Procedures.
Department of Commerce shall process debarment actions as informally
as practicable, consistent with the principles of fundamental fairness,
using the procedures in 26.311 through 26.314.
15 CFR 26.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
15 CFR 26.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the respondent
advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under 26.305 for proposing
debarment;
(d) Of the provisions of 26.311 through 26.314, and any other
Department of Commerce procedures, if applicable, governing debarment
decisionmaking; and
(e) Of the potential effect of a debarment.
15 CFR 26.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
15 CFR 26.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may
reject any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c)(1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in 26.215.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision
not to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
15 CFR 26.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Department of
Commerce may, at any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion of
the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see Subpart E).
15 CFR 26.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the seriousness
of the cause(s). If a suspension precedes a debarment, the suspension
period shall be considered in determining the debarment period.
(1) Debarment for causes other than those related to a violation of
the requirements of Subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements of
Subpart F of this part (see 26.305(c)(5)), the period of debarment
shall not exceed five years.
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
26.311 through 26.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such
a request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
(53 FR 19177, 19204, May 26, 1988, as amended at 54 FR 4950 and 4954,
Jan. 31, 1989)
15 CFR 26.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the participant
that is specifically named and given notice of the proposed debarment
and an opportunity to respond (see 26.311 through 26.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
15 CFR 26.325 Subpart D -- Suspension
15 CFR 26.400 General.
(a) The suspending official may suspend a person for any of the
causes in 26.405 using procedures established in 26.410 through
26.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in 26.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This
assessment should include an examination of basic documents such as
grants, cooperative agreements, loan authorizations, and contracts.
15 CFR 26.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
26.400 through 26.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in 26.305(a); or
(2) That a cause for debarment under 26.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
15 CFR 26.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Department of Commerce shall process
suspension actions as informally as practicable, consistent with
principles of fundamental fairness, using the procedures in 26.411
through 26.413.
15 CFR 26.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further Federal Government
dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put the
respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under 26.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of 26.411 through 26.413 and any other
Department of Commerce procedures, if applicable, governing suspension
decisionmaking; and
(g) Of the effect of the suspension.
15 CFR 26.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
15 CFR 26.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see 26.320(c) for reasons for reducing the period or scope of
debarment) or may leave it in force. However, a decision to modify or
terminate the suspension shall be without prejudice to the subsequent
imposition of suspension by any other agency or debarment by any agency.
The decision shall be rendered in accordance with the following
provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
15 CFR 26.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the completion
of an investigation or ensuing legal, debarment, or Program Fraud Civil
Remedies Act proceedings, unless terminated sooner by the suspending
official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice of
an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
15 CFR 26.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see 26.325), except that the procedures of 26.410 through 26.413
shall be used in imposing a suspension.
15 CFR 26.420 Subpart E -- Responsibilities of GSA, Agency and Participants
15 CFR 26.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with
cross-references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
15 CFR 26.505 Department of Commerce responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Department of Commerce has granted exceptions under 26.215
permitting participation by debarred, suspended, or voluntarily excluded
persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in 26.500(b) and of the
exceptions granted under 26.215 within five working days after taking
such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
15 CFR 26.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in Appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not necessarily
result in denial of participation. However, the certification, and any
additional information pertaining to the certification submitted by the
participant, shall be considered in the administration of covered
transactions.
(b) Certification by participants in lower tier covered transactions.
(1) Each participant shall require participants in lower tier covered
transactions to include the certification in Appendix B to this part for
it and its principals in any proposal submitted in connection with such
lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Department of Commerce if at
any time the participant learns that its certification was erroneous
when submitted or has become erroneous by reason of changed
circumstances. Participants in lower tier covered transactions shall
provide the same updated notice to the participant to which it submitted
its proposals.
15 CFR 26.510 Subpart F -- Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21693, May 25, 1990, unless otherwise noted.
15 CFR 26.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that --
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988 for
contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and
52.2.
15 CFR 26.605 Definitions.
(a) Except as amended in this section, the definitions of 26.105
apply to this subpart.
(b) For purposes of this subpart --
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work done
in connection with a specific grant at which employees of the grantee
are prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged in
the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals, i.e., any
benefit to veterans, their families, or survivors by virtue of the
service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the
State government if it has a written determination from a State
government that such State considers the instrumentality to be an agency
of the State government.
15 CFR 26.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(c) The provisions of subparts A, B, C, D and E of this part apply to
matters covered by this subpart, except where specifically modified by
this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
15 CFR 26.615 Grounds for suspension of payments, suspension or
termination of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that --
(a) The grantee has made a false certification under 26.630;
(b) With respect to a grantee other than an individual --
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual --
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
15 CFR 26.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
26.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see 26.320(a)(2) of this part).
15 CFR 26.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
15 CFR 26.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a
non-automatic continuation of such a grant made on or after March 18,
1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
(1) The Office of Federal Assistance serves as the central location
for submission of State and State agency certifications. Certifications
should be sent to: Director, Office of Federal Assistance, HCHB Room
6204, Washington, DC 20230.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(i) The Office of Federal Assistance serves as the central location
for submission of State and State agency certifications. Certifications
should be sent to: Director, Office of Federal Assistance, HCHB Room
6204, Washington, DC 20230.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.
(55 FR 21688, 21693, May 25, 1990)
15 CFR 26.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(i) The Office of Federal Assistance serves as the central location
for submission of notices of conviction. Notices should be sent to:
Director, Office of Federal Assistance, HCHB Room 6204, Washington, DC
20230.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
(i) Take appropriate personnel action against the employee, up to and
including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification
number(s) for each of the Federal agency's affected grants.
(1) The Office of Federal Assistance serves as the central location
for submission of notices of conviction. Notices should be sent to:
Director, Office of Federal Assistance, HCHB Room 6204, Washington, DC
20230.
(Approved by the Office of Management and Budget under control number
0991-0002)
(55 FR 21688, 21693, May 25, 1990)
15 CFR 26.635 Pt. 26, App. A
15 CFR 26.635 Appendix A to Part 26 -- Certification Regarding
Debarment, Suspension, and Other Responsibility Matters -- Primary
Covered Transactions
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause of default.
4. The prospective primary participant shall privide immediate
written notice to the department or agency to whom this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms ''covered transaction,'' ''debarred,'' ''suspended,''
''ineligible,'' ''lower tier covered transaction,'' ''participant,''
''person,'' ''primary covered transaction,'' ''principal,''
''proposal,'' and ''voluntarily excluded,'' as used in this clause, have
the meanings set out in the Definitions and Coverage sections of the
rules implementing Executive Order 12549. You may contact the
department or agency to which this proposal is being submitted for
assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency entering into this
transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ''Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion
-- Lower Tier Covered Transaction,'' provided by the department or
agency entering into this covered transaction, without modification, in
all lower tier covered transactions and in all solicitations for lower
tier covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals.
Each participant may, but is not required to, check the Nonprocurement
List (Tel. ).
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and
information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from covered transactions
by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State of local)
transaction or contract under a public transaction; violation of
Federal or State antitrust statutes or commission of embezzlement,
theft, forgery, bribery, falsification or destruction of records, making
false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this
application/proposal had one or more public transactions (Federal, State
or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
15 CFR 26.635 Pt. 26, App. B
15 CFR 26.635 Appendix B to Part 26 -- Certification Regarding
Debarment, Suspension, Ineligibilty and Voluntary Exclusion -- Lower
Tier Covered Transactions
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government, the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or has become erroneous by
reason of changed circumstances.
4. The terms ''covered transaction,'' ''debarred,'' ''suspended,''
''ineligible,'' ''lower tier covered transaction,'' ''participant,''
''person,'' ''primary covered transaction,'' ''principal,''
''proposal,'' and ''voluntarily excluded,'' as used in this clause, have
the meanings set out in the Definitions and Coverage sections of rules
implementing Executive Order 12549. You may contact the person to which
this proposal is submitted for assistance in obtaining a copy of those
regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency with which this
transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
''Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion -- Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals.
Each participant may, but is not required to, check the Nonprocurement
List (Tel. ).
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and
information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
15 CFR 26.635 Pt. 26, App. C
15 CFR 26.635 Appendix C to Part 26 -- Certification Regarding
Drug-Free Workplace Requirements
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the
Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need
not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal statute
involving the manufacture, distribution, dispensing, use, or possession
of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged in
the performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the
grantee's payroll; or employees of subrecipients or subcontractors in
covered workplaces).
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about --
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a)
that, as a condition of employment under the grant, the employee will --
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the
identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted --
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s) for
the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
-- -- --
Check if there are workplaces on file that are not identified here.
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
(55 FR 21690, 21693, May 25, 1990)
15 CFR 26.635 Pt. 27
15 CFR 26.635 PART 27 -- PROTECTION OF HUMAN SUBJECTS
Sec.
27.101 To what does this policy apply?
27.102 Definitions.
27.103 Assuring compliance with this policy -- research conducted or
supported by any Federal Department or Agency.
27.104 -- 27.106 (Reserved)
27.107 IRB Membership.
27.108 IRB functions and operations.
27.109 IRB review of research.
27.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
27.111 Criteria for IRB approval of research.
27.112 Review by institution.
27.113 Suspension or termination of IRB approval of research.
27.114 Cooperative research.
27.115 IRB records.
27.116 General requirements for informed consent.
27.117 Documentation of informed consent.
27.118 Applications and proposals lacking definite plans for
involvement of human subjects.
27.119 Research undertaken without the intention of involving human
subjects.
27.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department or Agency.
27.121 (Reserved)
27.122 Use of Federal funds.
27.123 Early termination of research support: Evaluation of
applications and proposals.
27.124 Conditions.
Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012 and 28019, June 18, 1991, unless otherwise
noted.
15 CFR 27.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by
federal civilian employees or military personnel, except that each
department or agency head may adopt such procedural modifications as may
be appropriate from an administrative standpoint. It also includes
research conducted, supported, or otherwise subject to regulation by the
federal government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in 27.102(e), must
comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
27.102(e) must be reviewed and approved, in compliance with 27.101,
27.102, and 27.107 through 27.117 of this policy, by an institutional
review board (IRB) that operates in accordance with the pertinent
requirements of this policy.
(b) Unless otherwise required by department or agency heads, research
activities in which the only involvement of human subjects will be in
one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and (ii) any disclosure of the human subjects' responses
outside the research could reasonably place the subjects at risk of
criminal or civil liability or be damaging to the subjects' financial
standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or (ii) federal statute(s) require(s)
without exception that the confidentiality of the personally
identifiable information will be maintained throughout the research and
thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) procedures for
obtaining benefits or services under those programs; (iii) possible
changes in or alternatives to those programs or procedures; or (iv)
possible changes in methods or levels of payment for benefits or
services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies, (i) if wholesome foods without additives are consumed or (ii)
if a food is consumed that contains a food ingredient at or below the
level and for a use found to be safe, or agricultural chemical or
environmental contaminant at or below the level found to be safe, by the
Food and Drug Administration or approved by the Environmental Protection
Agency or the Food Safety and Inspection Service of the U.S. Department
of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which
may otherwise be applicable and which provide additional protections to
human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these 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 Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures. /1/
(56 FR 28012 and 28019, June 18, 1991, 56 FR 29756, June 28, 1991)
/1/ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR part 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR part 46.101(b)(2), for
research involving survey or interview procedures or observation of
public behavior, does not apply to research with children, subpart D,
except for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
15 CFR 27.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or judicial
or other body authorized under applicable law to consent on behalf of a
prospective subject to the subject's participation in the procedure(s)
involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs
may include research activities.
(e) Research subject to regulation, and similar terms are intended to
encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) data through intervention or interaction with the individual, or
(2) identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ''Private information'' includes information
about behavior that occurs in a 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.
15 CFR 27.103 Assuring compliance with this policy -- research
conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(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 27.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any
employment or other relationship between each member and the
institution; for 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 27.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
27.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by 27.103 of this Policy has been reviewed and approved
by the IRB. Such certification must be submitted with the application
or proposal or by such later date as may be prescribed by the department
or agency to which the application or proposal is submitted. Under no
condition shall research covered by 27.103 of the Policy be supported
prior to receipt of the certification that the research has been
reviewed and approved by the IRB. Institutions without an approved
assurance covering the research shall certify within 30 days after
receipt of a request for such a certification from the department or
agency, that the application or proposal has been approved by the IRB.
If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under Control Number
9999-0020)
(56 FR 28012 and 28019, June 18, 1991, 56 FR 29756, June 28, 1991)
27.104 -- 27.106 (Reserved)
15 CFR 27.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB
consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns
are in scientific areas and at least one member whose primary concerns
are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence
in special areas to assist in the review of issues which require
expertise beyond or in addition to that available on the IRB. These
individuals may not vote with the IRB.
15 CFR 27.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
27.103(b)(4) and, to the extent required by, 27.103(b)(5).
(b) Except when an expedited review procedure is used (see 27.110),
review proposed research at convened meetings at which a majority of the
members of the IRB are present, including at least one member whose
primary concerns are in nonscientific areas. In order for the research
to be approved, it shall receive the approval of a majority of those
members present at the meeting.
15 CFR 27.109 IRB Review of Research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with 27.116. The IRB may require
that information, in addition to that specifically mentioned in 27.116,
be given to the subjects when in the IRB's judgment the information
would meaningfully add to the protection of the rights and welfare of
subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with 27.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it
shall include in its written notification a statement of the reasons for
its 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
9999-0020)
15 CFR 27.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
(a) The Secretary, HHS, has established, and published as a Notice in
the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list
will be amended, as appropriate after consultation with other
departments and agencies, through periodic republication by the
Secretary, HHS, in the Federal Register. A copy of the list is
available from the Office for Protection from Research Risks, National
Institutes of Health, HHS, Bethesda, Maryland 20892.
(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 27.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
15 CFR 27.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB shall
determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by 27.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by 27.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
15 CFR 27.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
15 CFR 27.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under Control Number
9999-0020)
15 CFR 27.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head,
an institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
15 CFR 27.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving
research; and a written summary of the discussion of controverted
issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
27.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in
27.103(b)(4) and 27.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by 27.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of 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
9999-0020)
15 CFR 27.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under
circumstances that provide the prospective subject or the representative
sufficient opportunity to consider whether or not to participate and
that minimize the possibility of coercion or undue influence. The
information that is given to the subject or the representative shall be
in language understandable to the subject or the representative. No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to
waive or appear to waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor, the institution or
its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation
may be terminated by the investigator without regard to the subject's
consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4) The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(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
9999-0020)
15 CFR 27.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of informed
consent required by 27.116. This form may be read to the subject or the
subject's legally authorized representative, but in any event, the
investigator shall give either the subject or the representative
adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by 27.116 have been presented orally to
the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a
signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each 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
9999-0020)
15 CFR 27.118 Applications and proposals lacking definite plans for
involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or agencies with the knowledge
that subjects may be involved within the period of support, but definite
plans would not normally be set forth in the application or proposal.
These include activities such as institutional type grants when
selection of specific projects is the institution's responsibility;
research training grants in which the activities involving subjects
remain to be selected; and projects in which human subject's
involvement will depend upon completion of instruments, prior animal
studies, or purification of compounds. These applications need not be
reviewed by an IRB before an award may be made. However, except for
research exempted or waived under 27.101 (b) or (i), no human subjects
may be involved in any project supported by these awards until the
project has been reviewed and approved by the IRB, as provided in this
policy, and certification submitted, by the institution, to the
department or agency.
15 CFR 27.119 Research undertaken without the intention of involving
human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
15 CFR 27.120 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 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.
15 CFR 27.121 (Reserved)
15 CFR 27.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
15 CFR 27.123 Early termination of research support: Evaluation of
applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications or
proposals covered by this policy the department or agency head may take
into account, in addition to all other eligibility requirements and
program 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).
15 CFR 27.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment of the
department or agency head additional conditions are necessary for the
protection of human subjects.
15 CFR 27.124 Pt. 28
15 CFR 27.124 PART 28 -- NEW RESTRICTIONS ON LOBBYING
15 CFR 27.124 Subpart A -- General
Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.
15 CFR 27.124 Subpart B -- Activities by Own Employees
28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.
15 CFR 27.124 Subpart C -- Activities by Other Than Own Employees
28.300 Professional and technical services.
15 CFR 27.124 Subpart D -- Penalties and Enforcement
28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.
15 CFR 27.124 Subpart E -- Exemptions
28.500 Secretary of Defense.
15 CFR 27.124 Subpart F -- Agency Reports
28.600 Semi-annual compilation.
28.605 Inspector General report.
Appendix A to Part 28 -- Certification Regarding Lobbying
Appendix B to Part 28 -- Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 5
U.S.C. 301.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Source: 55 FR 6737, 6748, Feb. 26, 1990, unless otherwise noted.
15 CFR 27.124 Subpart A -- General
15 CFR 28.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has 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.
15 CFR 28.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive
departments and agencies as well as independent regulatory commissions
and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in
section 4 of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450B). Alaskan Natives are included under the definitions of
Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as
defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a
multi-State, regional, or interstate entity having governmental duties
and powers.
15 CFR 28.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if
required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000,
unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to
the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of
this section shall be treated as a material representation of fact upon
which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989,
but not made before that date, certifications shall be required at award
or commitment, covering activities occurring between December 23, 1989,
and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either Subpart B
or C.
15 CFR 28.110 Subpart B -- Activities by Own Employees
15 CFR 28.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement if the payment is for
agency and legislative liaison activities not directly related to a
covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited
proposal prior to its official submission; and,
(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.
15 CFR 28.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
15 CFR 28.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
15 CFR 28.210 Subpart C -- Activities by Other Than Own Employees
15 CFR 28.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of any reasonable payment to a person, other
than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in 28.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
15 CFR 28.300 Subpart D -- Penalties and Enforcement
15 CFR 28.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(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.
15 CFR 28.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
15 CFR 28.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
15 CFR 28.410 Subpart E -- Exemptions
15 CFR 28.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
15 CFR 28.500 Subpart F -- Agency Reports
15 CFR 28.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or any
successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the House of Representatives no
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.
15 CFR 28.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector General,
the agency official comparable to an Inspector General shall prepare and
submit the annual report, or, if there is no such comparable official,
the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
15 CFR 28.605 Pt. 28, App. A
15 CFR 28.605 Appendix A to Part 28 -- Certification Regarding Lobbying
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.
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.
15 CFR 28.605 Appendix B to Part 28 -- Disclosure Form to Report Lobbying
15 CFR 28.605 Pt. 28, App. B
insert illustration 532
insert illustration 533
insert illustration 534
15 CFR 28.605 PART 29a -- AUDIT REQUIREMENTS FOR STATE AND LOCAL
GOVERNMENTS
Sec.
29a.1 Purpose.
29a.2 Background.
29a.3 Policy.
29a.4 Definitions.
29a.5 Scope of audit.
29a.6 Frequency of audit.
29a.7 Internal control and compliance reviews.
29a.8 Subrecipients.
29a.9 Relation to other audit requirements.
29a.10 Cognizant agency responsibilities.
29a.11 Illegal acts or irregularities.
29a.12 Audit reports.
29a.13 Audit resolution.
29a.14 Audit workpapers and reports.
29a.15 Audit costs.
29a.16 Sanctions.
29a.17 Auditor selection.
29a.18 Small and minority audit firms.
Authority: Single Audit Act of 1984, Pub. L. 98-502, (31 U.S.C.
7501, et seq.); OMB Circular A-128, Audits of State and Local
Governments.
Source: 50 FR 30419, July 26, 1985, unless otherwise noted.
Redesignated at 56 FR 15993, Apr. 19, 1991.
15 CFR 29a.1 Purpose.
Pursuant to the Single Audit Act of 1984, Pub. L. 98-502, this part
established audit requirements for State and local governments that
receive Federal aid, and defines Federal responsibilities for
implementing and monitoring those requirements.
15 CFR 29a.2 Background.
The Single Audit Act builds upon earlier efforts to improve audits of
Federal aid programs. The Act requires State and local governments that
receive $100,000 or more a year in Federal funds to have an audit made
for that year.
15 CFR 29a.3 Policy.
The Single Audit Act requires the following:
(a) State or local governments that receive $100,000 or more a year
in Federal financial assistance shall have an audit made in accordance
with this rule.
(b) State or local governments that receive between $25,000 and
$100,000 a year shall have an audit made in accordance with this part,
or in accordance with Federal laws and regulations governing the
programs they participate in.
(c) State or local governments that receive less than $25,000 a year
shall be exempt from compliance with the Act and Federal audit
requirements. These State or local governments shall be governed by
aduit requirements prescribed by State or local law or regulation.
(d) Nothing in this paragraph exempts State or local governments from
maintaining records of financial assistance or from providing access to
such records to Federal agencies, as provided in Federal law or in
Circular A-102, ''Uniform requirements for grants to State of local
governments.''
15 CFR 29a.4 Definitions.
For the purpose of this part, the following definitions from the
Single Audit Act apply:
(a) Cognizant agency means the Federal agency assigned by the Office
of Management and Budget to carry out the responsibilities described in
paragraph 8a.10 of this rule.
(b) Federal financial assistance means assistance provided by the
Department in the form of grants, contracts, cooperative agreements,
loans, loan guarantees, property, interest subsidies, insurance, or
direct appropriations, but does not include direct Federal cash
assistance to individuals. It includes awards received directly from
the Department, or directly through other units of State or local
governments.
(c) Federal agency has the same meaning as the term 'agency' in
Section 551(1) of Title 5, United States Code.
(d) Generally accepted accounting principles has the meaning
specified in the generally accepted government auditing standards.
(e) Generally accepted government auditing standards means the
Standards For Audit of Government Organizations, Programs, Activities,
and Functions, developed by the Comptroller General, dated February 27,
1981.
(f) Independent auditor means:
(1) A State or local government auditor who meets the independence
standards specified in generally accepted government auditing standards;
or
(2) A public accountant who meets such independence standards.
(g) Internal controls means the plan of organization and methods and
procedures adopted by management to ensure that:
(1) Resource use is consistent with laws, regulations, and policies;
(2) Resources are safeguarded against waste, loss, and misuse; and
(3) Reliable data are obtained, maintained, and fairly disclosed in
reports.
(h) Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaskan Native village or
regional or village corporation (as defined in, or established under,
the Alaskan Native Claims Settlement Act) that is recognized by the
United States as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.
(i) Local government means any unit of local government within a
State, including a county, a borough, municipality, city, town,
township, parish, local public authority, special district, school
district, intrastate district, council of government, and any other
instrumentality of local government.
(j) Major Federal Assistance Program, for State or local governments
having Federal assistance expenditures between $100,000 and
$100,000,000, means any program for which Federal expenditures during
the applicable year exceed the larger of $300,000, or 3 percent of such
total expenditures.
Where total expenditures of Federal assistance exceed $100,000,000,
the following criteria apply:
(k) Public accountants means those individuals who meet the
qualifications standards included in generally accepted government
auditing standards for personnel performing government audits.
(l) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, the
Trust Territory of the Pacific Islands, and any instrumentality thereof,
and any multi-State, regional or interstate entity that has governmental
functions and any Indian Tribe.
(m) Subrecipient means any person or government department, agency,
or establishment that receives Federal financial assistance to carry out
a program through a State or local government, but does not include an
individual that is a beneficiary of such a program. A subrecipient may
also be a direct recipient of Federal financial assistance.
15 CFR 29a.5 Scope of audit.
The Single Audit Act provides that:
(a) The audit shall be made by an independent auditor in accordance
with generally accepted government auditing standards covering financial
and compliance audits.
(b) The audit shall cover the entire operations of a State or local
government or, at the option of that government, it may cover
departments, agencies or establishments that received, expended, or
otherwise administered Federal financial assistance during the year.
However, if a State or local government receives $25,000 or more in
General Revenue Sharing Funds in a fiscal year, it shall have an audit
of its entire operations. A series of audits of individual departments,
agencies, and establishments for the same fiscal year may be considered
a single audit.
(c) Public hospitals and public colleges and universities may be
excluded from State and local audits and the requirements of this part.
However, if such entities are excluded, audits of these entities shall
be made in accordance with statutory requirements and the provisions of
OMB Circular A-110, ''Uniform requirements for grants to universities,
hospitals, and other nonprofit organizations.''
(d) The auditor shall determine whether:
(1) The financial statements of the government, department, agency or
establishment present fairly its financial position and the results of
its financial operations in accordance with generally accepted
accounting principles;
(2) The organization has internal accounting and other control
systems to provide reasonable assurance that it is managing Federal
financial assistance programs in compliance with applicable laws and
regulations; and
(3) The organization has complied with laws and regulations that may
have material effect on its financial statements and on each major
Federal assistance program.
15 CFR 29a.6 Frequency of audit.
Audits shall be made annually unless the State or local government
has, by January 1, 1987, a constitutional or statutory requirement for
less frequent audits. For those governments, the cognizant agency shall
permit biennial audits, covering both years, if the government so
requests. It shall also honor requests for biennial audits by
governments that have an administrative policy calling for audits less
frequent than annual, but only for fiscal years beginning before January
1, 1987.
15 CFR 29a.7 Internal control and compliance reviews.
The Single Audit Act requires that the independent auditor determine
and report on whether the organization has internal control systems to
provide reasonable assurance that it is managing Federal assistance
programs in compliance with applicable laws and regulations.
(a) Internal control review. In order to provide this assurance, the
auditor must make a study and evaluation of internal control systems
used in administering Federal assistance programs. The study and
evaluation must be made whether or not the auditor intends to place
reliance on such systems. As part of this review, the auditor shall:
(1) Test whether these internal control systems are functioning in
accordance with prescribed procedures.
(2) Examine the recipient's system for monitoring subrecipients and
obtaining and acting on subrecipient audit reports.
(b) Compliance review. The Law also requires the auditor to
determine whether the organization has complied with laws and
regulations that may have a material effect on each major Federal
assistance program.
(1) In order to determine which major programs are to be tested for
compliance, State and local governments shall identify in their accounts
all Federal funds received and expended and the programs under which
they were received. This shall include funds received directly from
Federal agencies and through other State and local governments.
(2) The review must include the selection and testing of a
representative number of charges from each major Federal assistance
program. The selection and testing of transactions shall be based on
the auditor's professional judgment considering such factors as the
amount of expenditures for the program and the individual awards; the
newness of the program or changes in its conditions; prior experience
with the program, particularly as revealed in audits and other
evaluations (e.g., inspections, program reviews); the extent to which
the program is carried out through subrecipients; the extent to which
the program contracts for goods or services; the level to which the
program is already subject to program reviews or other forms of
independent oversight; the adequacy of the controls for ensuring
compliance; the expectation of adherence or lack of adherence to the
applicable laws and regulations; and the potential impact of adverse
findings.
(i) In making the test of transactions, the auditor shall determine
whether:
(A) The amounts reported as expenditures were for allowable services,
and
(B) The records show that those who received services or benefits
were eligible to receive them.
(ii) In addition to transaction testing, the auditor shall determine
whether:
(A) Matching requirements, levels of effort and earmarking
limitations were met,
(B) Federal financial reports and claims for advances and
reimbursements contain information that is supported by the books and
records from which the basic financial statements have been prepared,
and
(C) Amounts claimed or used for matching were determined in
accordance with OMB Circular A-87, ''Cost principles for State and local
governments,'' and Attachment F of OMB Circular A-102, ''Uniform
requirements for grants to State or local governments.''
(iii) The principle compliance requirements of the largest Federal
aid programs may be ascertained by referring to the Compliance
Supplement for Single Audits of State and Local Governments, issued by
OMB and available from the Government Printing Office. For those
programs not covered in the Compliance Supplement, the auditor may
ascertain compliance requirements by researching the statutes,
regulations, and agreements governing individual programs.
(3) Transactions related to other Federal assistance programs that
are selected in connection with examinations of financial statements and
evaluations of internal controls shall be tested for compliance with
Federal laws and regulations that apply to such transactions.
15 CFR 29a.8 Subrecipients.
State or local governments that receive Federal financial assistance
and provide $25,000 or more of it in a fiscal year to a subrecipient
shall:
(a) Determine whether State or local subrecipients have met the audit
requirements of this part and whether subrecipients covered by Circular
A-110, ''Uniform requirements for grants to universities, hospitals, and
other nonprofit organizations,'' have met that requirement;
(b) Determine whether the subrecipient spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may
be accomplished by reviewing an audit of the subrecipient made in
accordance with this part, OMB Circular A-110, or through other means
(e.g., program reviews) if the subrecipient has not yet had such an
audit;
(c) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instances of noncompliance
with Federal laws and regulations;
(d) Consider whether subrecipient audits necessitate adjustment of
the recipient's own records; and
(e) Require each subrecipient to permit independent auditors to have
access to the records and financial statement as necessary to comply
with this part.
15 CFR 29a.9 Relation to other audit requirements.
The Single Audit Act provides that an audit made in accordance with
this part shall be in lieu of any financial or financial compliance
audit required under individual Federal assistance programs. To the
extent that a single audit provides the Department with information and
assurance it needs to carry out its overall responsibilities, the
Department shall rely upon and use such information. However, the
Department shall make any additional audits which are necessary to carry
out its responsibilities under Federal law and regulations. Any
additional Federal audit effort shall be planned and carried out in such
a way as to avoid duplication.
(a) The provisions of this part do not limit the authority of the
Department to make, or contract for audits and evaluations of Federal
financial assistance programs, nor does it limit the authority of the
Inspector General or other Federal audit officials.
(b) The provisions of this part do not authorize any State or local
government or subrecipient thereof to constrain the Department, in any
manner, from carrying out additional audits.
(c) The Department, when making or contracting for audits in addition
to the audits made by recipients pursuant to this part shall, consistent
with other applicable laws and regulations, arrange for funding the cost
of such additional audits. Such additional audits include economy and
efficiency audits, program results audits, and program evaluations.
15 CFR 29a.10 Cognizant agency responsibilities.
The Single Audit Act provides for cognizant Federal agencies to
oversee the implementation of this part.
(a) The Office of Management and Budget will assign cognizant
agencies for States and their subdivisions and larger local governments
and their subdivisions. Other Federal agencies may participate with an
assigned cognizant agency in order to fulfill the cognizant
responsibilities. Smaller governments not assigned a cognizant agency
will be under the general oversight of the Federal agency that provides
them the most funds whether directly or indirectly.
(b) A cognizant agency shall have the following responsibilities:
(1) Ensure that audits are made and reports are received in a timely
manner and in accordance with the requirements of this rule.
(2) Provide technical advice and liaison to State and local
governments and independent auditors.
(3) Obtain or make quality control reviews of selected audits made by
non-Federal audit organizations and provide the results, when
appropriate, to other interested organizations.
(4) Promptly inform other affected Federal agencies and appropriate
Federal law enforcement officials of any reported illegal acts or
irregularities. They should also inform State or local law enforcement
and prosecuting authorities, if not advised by the recipient, of any
violation of law within their jurisdiction.
(5) Advise the recipient of audits that have been found not to have
met the requirements set forth in this part. In such instances, the
recipient will be expected to work with the auditor to take corrective
action. If corrective action is not taken, the cognizant agency shall
notify the recipient and Federal awarding agencies of the facts and make
recommendations for followup action. Major inadequacies of repetitive
substandard performance of independent auditors shall be referred to
appropriate professional bodies for disciplinary action.
(6) Coordinate, to the extent practicable, audits made by or for
Federal agencies that are in addition to the audits made pursuant to
this rule, so that the additional audits build upon such audits.
(7) Oversee the resolution of audit findings that affect the programs
of more than one agency.
15 CFR 29a.11 Illegal acts or irregularities.
If the auditor becomes aware of illegal acts or other irregularities,
prompt notice shall be given to recipient management officials above the
level of involvement. (See also 8a.12(a)(3) for the auditor's
reporting responsibilities.) The recipient, in turn, shall promptly
notify the cognizant agency of the illegal acts or irregularities and of
proposed and actual actions, if any. Illegal acts and irregularities
include such matters as conflicts of interest, falsification of records
or reports, and misappropriations of funds or other assets.
15 CFR 29a.12 Audit reports.
Audit reports must be prepared at the completion of the audit.
Reports serve many needs of State and local governments as well as
meeting the requirements of the Single Audit Act.
(a) The audit report shall state that the audit was made in
accordance with the provisions of this part. The reports shall be made
up of at least:
(1) The auditor's report on financial statements and on a schedule of
Federal assistance; the financial statements; and a schedule of
Federal assistance, showing the total expenditures for each Federal
assistance program as identified in the Catalog of Federal Domestic
Assistance. Federal programs or grants that have not been assigned a
catalog number shall be identified under the caption ''other Federal
assistance.''
(2) The auditor's report on the study and evaluation of internal
control systems must identify the organization's significant internal
accounting controls, and those controls designed to provide reasonable
assurance that Federal programs are being managed in compliance with
laws and regulations. It must also identify the controls that were
evaluated, the controls that were not evaluated, and the material
weakness identified as a result of the evaluation.
(3) The auditor's report on compliance containing:
(i) A statement of positive assurance with respect to those items
tested for compliance, including compliance with law and regulations
pertaining to financial reports and claims for advances and
reimbursements;
(ii) Negative assurance on those items not tested;
(iii) A summary of all instances of noncompliance; and
(iv) An identification of total amounts questioned, if any, for each
Federal assistance award, as a result of noncompliance.
(b) The three parts of the audit report may be bound into a single
report, or presented at the same time as separate documents.
(c) All fraud abuse, or illegal acts or indications of such acts,
including all questioned costs found as the result of these acts that
auditors become aware of, should normally be covered in a separate
written report submitted in accordance with 8a.12(f).
(d) In addition to the audit report, the recipient shall provide
comments on the findings and recommendations in the report, including a
plan for corrective action taken or planned and comments on the status
of corrective action taken on prior findings. If corrective action is
not necessary, a statement describing the reason it is not should
accompany the audit report.
(e) The reports shall be made available by the State or local
government for public inspection within 30 days after the completion of
the audit.
(f) In accordance with generally accepted government audit standards,
report shall be submitted by the auditor to the organization audited and
to those requiring or arranging for the audit. In addition, the
recipient shall submit copies of the reports to each Federal department
or agency that provided Federal assistance funds to the recipient.
Subrecipients shall submit copies to recipients that provided them
Federal assistance funds. The reports shall be sent within 30 days
after the end of the audit period unless a longer period is agreed to
with the cognizant agency.
(g) Recipients of more than $100,000 in Federal funds shall submit
one copy of the audit report within 30 days after issuance to a central
clearinghouse to be designated by the Office of Management and Budget.
The clearinghouse will keep completed audits on file and followup with
State or local governments that have not submitted required audit
reports.
(h) Recipients shall keep audit reports on file for three years from
the date of their issuance.
15 CFR 29a.13 Audit resolution.
(a) As provided in 8a.10, the cognizant agency shall be responsible
for monitoring the resolution of audit findings that affect the programs
of more than one Federal agency. Resolution of findings that relate to
the programs of a single Federal agency will be the responsibility of
the recipient and that agency. Alternate arrangements may be made on a
case-by-case basis by agreement among the agencies concerned.
(b) Resolution shall be made within six months after receipt of the
report by Federal departments and agencies. Corrective action should
proceed as rapidly as possible.
15 CFR 29a.14 Audit workpapers and reports.
Workpapers and reports shall be retained for a minimum of three years
from the date of the audit report, unless the auditor is notified in
writing by the cognizant agency to extend the retention period. Audit
workpapers shall be made available upon request to the cognizant agency
or its designee or the General Accounting Office, at the completion of
the audit.
15 CFR 29a.15 Audit costs.
The cost of audits made in accordance with the provisions of this
part are allowable charges to Federal assistance programs.
(a) The charges may be considered a direct cost of an allocated
indirect cost, determined in accordance with the provisions of OMB
Circular A-87, ''Cost Principles for State and local governments.''
(b) Generally, the percentage of costs charged to Federal assistance
programs for a single audit shall not exceed the percentage that Federal
funds expended represent of total funds expended by the recipient during
the fiscal year. The percentage may be exceeded, however, if
appropriate documentation demonstrates higher actual cost.
15 CFR 29a.16 Sanctions.
The Single Audit Act provides that no cost may be charged to Federal
assistance programs for audits required by the Act that are not made in
accordance with this part. In cases of continued inability or
unwillingness to have a proper audit, Federal agencies must consider
other appropriate sanctions including:
(a) Withholding a percentage of assistance payments until the audit
is completed satisfactorily,
(b) Withholding or disallowing overhead costs, and
(c) Suspending the Federal assistance agreement until the audit is
made.
15 CFR 29a.17 Auditor selection.
In arranging for audit services State and local governments shall
follow the procurement standards prescribed by Attachment O of OMB
Circular A-102, ''Uniform requirements for grants to State and local
governments.'' The standards provide that while recipients are
encouraged to enter into intergovernmental agreements for audit and
other services, analysis should be made to determine whether it would be
more economical to purchase the services from private firms. In
instances where use of such intergovernmental agreements are required by
State statutes (e.g., audit services) these statutes will take
precedence.
15 CFR 29a.18 Small and minority audit firms.
Small audit firms and audit firms owned and controlled by socially
and economically disadvantaged individuals shall have the maximum
practicable opportunity to participate in contracts awarded to fulfill
the requirements of this part. Recipients of Federal assistance shall
take the following steps to further this goal:
(a) Assure that small audit firms and audit firms owned and
controlled by socially and economically disadvantaged individuals are
used to the fullest extent practicable.
(b) Make information on forthcoming opportunities available and
arrange timeframes for the audit so as to encourage and facilitate
participation by small audit firms and audit firms owned and controlled
by socially and economically disadvantaged individuals.
(c) Consider in the contract process whether firms competing for
larger audits intend to subcontract with small audit firms and audit
firms owned and controlled by socially and economically disadvantaged
individuals.
(d) Encourage contracting with small audit firms or audit firms owned
and controlled by socially and economically disadvantaged individuals
which have traditionally audited government programs and, in such cases
where this is not possible, assure that these firms are given
consideration for audit subcontracting opportunities.
(e) Encourage contracting with consortiums of small audit firms as
described in paragraph (a) of this section when a contract is too large
for an individual small audit firm or audit firm owned and controlled by
socially and economically disadvantaged individuals.
(f) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration in the solicitation
and utilization of small audit firms or audit firms owned and controlled
by socially and economically disadvantaged individuals.
15 CFR 29a.18 PART 29b -- AUDIT REQUIREMENTS FOR INSTITUTIONS OF HIGHER
EDUCATION AND OTHER NONPROFIT ORGANIZATIONS
Sec.
29b.1 Purpose.
29b.2 Background.
29b.3 Policy.
29b.4 Definitions.
29b.5 Audit of nonprofit institutions.
29b.6 Cognizant agency responsibilities.
29b.7 Oversight agency responsibilities.
29b.8 Recipient responsibilities.
29b.9 Relation to other audit requirements.
29b.10 Frequency of audit.
29b.11 Sanctions.
29b.12 Audit costs.
29b.13 Auditor selection.
29b.14 Small and minority audit firms.
29b.15 Scope of audit and audit objectives.
29b.16 Internal controls over Federal awards: compliance reviews.
29b.17 Illegal acts.
29b.18 Audit reports.
29b.19 Audit resolution.
29b.20 Audit workpapers and reports.
29b.21 Availability of publications.
Authority: 5 U.S.C. 301.
Source: 56 FR 15993, Apr. 19, 1991, unless otherwise noted.
15 CFR 29b.1 Purpose.
This part establishes audit requirements and defines the Department's
responsibilities for implementing and monitoring such requirements for
institutions of higher education and other nonprofit organizations
receiving Federal awards. The provisions of this part are effective
April 19, 1991, and shall apply to audits of nonprofit institutions for
fiscal years that begin on or after May 20, 1991.
15 CFR 29b.2 Background.
This part sets forth audit requirements pursuant to Office of
Management and Budget (OMB) Circular A-133, ''Audits of Institutions of
Higher Education and Other Nonprofit Organizations,'' which superseded
the audit provisions of Attachment F, subparagraph 2h, of OMB Circular
A-110, ''Uniform Administrative Requirements for Grants and Agreements
with Institutions of Higher Education, Hospitals, and other Nonprofit
Organizations.''
15 CFR 29b.3 Policy.
This part does not exempt institutions of higher education and other
nonprofit organizations from maintaining records of financial assistance
or from providing Federal agencies with access to such records as
required by Federal law or OMB Circular A-110, ''Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and other Nonprofit Organizations.''
15 CFR 29b.4 Definitions.
For purposes of this part, the following definitions apply:
Award means financial assistance, and Federal cost-type contracts
used to buy services or goods for the use of the Federal Government. It
includes awards received directly from the Federal agencies or
indirectly through recipients. It does not include procurement
contracts to vendors under grants or contracts, used to buy goods or
services. Audits of such vendors shall be covered by the terms and
conditions of the contract.
Cognizant agency means the Federal agency assigned by OMB to carry
out the responsibilities described in 29b.6.
Coordinated audit approach means an audit wherein the independent
auditor, and other Federal and non-Federal auditors consider each
other's work in determining the nature, timing, and extent of his or her
own auditing procedures. A coordinated audit must be conducted in
accordance with ''Government Auditing Standards,'' and meet the
objectives and reporting requirements set forth in 29b.15(b) and
29b.18, respectively. The objective of the coordinated audit approach is
to minimize duplication of audit effort, but not to limit the scope of
the audit work so as to preclude the independent auditor from meeting
the objectives set forth in 29b.15(b) or issuing the reports required
in 29b.18 in a timely manner.
Federal agency has the same meaning as the term 'agency' in section
551(1) of title 5, United States Code.
Federal financial assistance means assistance provided by a Federal
agency to a recipient or sub-recipient to carry out a program. Such
assistance may be in the form of grants, contracts, cooperative
agreements, loans, loan guarantees, property, interest subsidies,
insurance, direct appropriations, or other non-cash assistance.
(1) Such assistance does not include direct Federal cash assistance
to individuals.
(2) Such assistance does include awards received directly from
Federal agencies, or indirectly when sub-recipients receive funds
identified by recipients as Federal funds.
(3) The granting agency is responsible for identifying the source of
funds awarded to recipients. Recipients are responsible for identifying
the source of funds awarded to sub-receipts.
Generally accepted accounting principles has the meaning specified in
the ''Government Auditing Standards.''
Independent auditor means:
(1) A Federal, State or local government auditor who meets the
standards specified in the ''Government Auditing Standards;'' or
(2) A public accountant who meets such standards.
Internal control structure means the policies and procedures
established to provide reasonable assurance that:
(1) Resource use is consistent with laws, regulations, and award
terms;
(2) Resources are safeguarded against waste, loss, and misuse; and
(3) Reliable data is obtained, maintained, and fairly disclosed in
reports.
Major program means an individual award or a number of awards in a
category of Federal assistance or support for which total expenditures
are the larger of three percent of total Federal funds expended or
$100,000, on which the auditor will be required to express an opinion as
to whether the major program is being administered in compliance with
laws and regulations. Each of the following categories of Federal
awards shall constitute a major program where total expenditures are the
larger of three percent of total Federal funds expended or $100,000:
(1) Research and Development,
(2) Student Financial Aid, or
(3) Individual awards not in the student aid or research and
development category.
Management decision means the evaluation by the management of an
establishment of the findings and recommendations included in an audit
report and the issuance of a final decision by management concerning its
response to such findings and recommendations, including actions
concluded to be necessary.
Nonprofit institution means any corporation, trust, association,
cooperative or other organization which:
(1) Is operated primarily for scientific, educational, service,
charitable, or similar purposes in the public interest;
(2) Is not organized primarily for profit; and
(3) Uses its net proceeds to maintain, improve, and/or expand its
operations.
The term nonprofit institutions includes institutions of higher
education, except those institutions that are audited as part of single
audits in accordance with part 29a, ''Audit Requirements for State and
Local Governments.'' The term does not include hospitals which are not
affiliated with an institution of higher education, or State and local
governments and Indian tribes covered by part 29a.
Oversight agency means the Federal agency that provides the
predominant amount of direct funding to a recipient not assigned a
cognizant agency, unless no direct funding is received. Where there is
no direct funding, the Federal agency with the predominant indirect
funding will assume the general oversight responsibilities as set forth
in 29b.7.
Recipient means an organization receiving financial assistance to
carry out a program directly from Federal agencies.
Research and development includes all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other nonprofit institutions. ''Research''
is defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. ''Development'' is
the systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems, or
methods, including design and development of prototypes and processes.
Student Financial Aid includes those programs of general student
assistance in which institutions participate, such as those authorized
by Title IV of the Higher Education Act of 1965 which is administered by
the U.S. Department of Education and similar programs provided by other
Federal agencies. It does not include programs which provide
fellowships or similar awards to students on a competitive basis, or for
specified studies or research.
Sub-recipient means any person or government department, agency,
establishment, or nonprofit organization that receives Federal financial
assistance to carry out a program through a primary recipient or other
sub-recipient, but does not include an individual that is a beneficiary
of such a program. A sub-recipient may also be a direct recipient of
Federal awards under other agreements.
Vendor means an organization providing a recipient or sub-recipient
with generally required goods or services that are related to the
administrative support of the Federal assistance program.
15 CFR 29b.5 Audit of nonprofit institutions.
(a) Requirements based on awards received.
(1) Nonprofit institutions that receive $100,000 or more a year in
Federal awards shall have an audit made in accordance with the
provisions of this part. However, nonprofit institutions receiving
$100,000 or more but receiving awards under only one program have the
option of having an audit of their institution prepared in accordance
with the provisions of this part or having an audit made of the one
program. For prior or subsequent years, when an institution has only
loan guarantees or outstanding loans that were made previously, the
institution may be required to conduct audits for those programs, in
accordance with regulations of the Federal agencies providing those
guarantees or loans.
(2) Nonprofit institutions that receive at least $25,000 but less
than $100,000 a year in Federal awards shall have an audit made in
accordance with this part or have an audit made of each Federal award,
in accordance with Federal laws and regulations governing the programs
in which they participate.
(3) Nonprofit institutions receiving less than $25,000 a year in
Federal awards are exempt from Federal audit requirements, but records
must be available for review by appropriate officials of the Federal
grantor agency or subgranting entity.
(b) Oversight by federal agencies.
(1) To each of the larger nonprofit institutions, OMB will assign a
Federal agency as the cognizant agency for monitoring audits and
ensuring the resolution of audit findings that affect the programs of
more than one agency.
(2) Smaller institutions not assigned a cognizant agency will be
under the general oversight of the Federal agency that provides them
with the most funds.
(3) Assignments to Federal cognizant agencies for carrying out
responsibilities in this section are set forth under a supplement to OMB
Circular A-133.
(4) Federal Government-owned, contractor-operated facilities at
institutions or laboratories operated primarily for the Government are
not included in the cognizance assignments. These will remain the
responsibility of the contracting agencies. The listed assignments
cover all of the functions in this part unless otherwise indicated. OMB
coordinates changes in agency assignments.
15 CFR 29b.6 Cognizant agency responsibilities.
The cognizant agency shall:
(a) Ensure that audits are made and reports are received in a timely
manner and in accordance with the requirements of this part;
(b) Provide technical advice and liaison to institutions and
independent auditors;
(c) Obtain or make quality control reviews of selected audits made by
non-Federal audit organizations, and provide the results, when
appropriate, to other interested organizations;
(d) Promptly inform other affected Federal agencies and appropriate
Federal law enforcement officials of any reported illegal acts or
irregularities. A cognizant agency should also inform State or local
law enforcement and prosecuting authorities, if not advised by the
recipient, of any violation of law within their jurisdiction;
(e) Advise the recipient of audits that have been found not to have
met the requirements set forth in this part. In such instances, the
recipient will work with the auditor to take corrective action. If
corrective action is not taken, the cognizant agency shall notify the
recipient and Federal awarding agencies of the facts and make
recommendations for follow-up action. Major inadequacies or repetitive
substandard performance of independent auditors shall be referred to
appropriate professional bodies for disciplinary action;
(f) Coordinate, to the extent practicable, audits or reviews made for
Federal agencies that are in addition to the audits made pursuant to
this part, so that the additional audits or reviews build upon audits
performed in accordance with this part;
(g) Ensure the resolution of audit findings that affect the programs
of more than one agency;
(h) Seek the views of other interested agencies before completing a
coordinated program; and
(i) Help coordinate the audit work and reporting responsibilities
among independent public accountants, State auditors, and both resident
and non-resident Federal auditors to achieve the most cost-effective
audit.
15 CFR 29b.7 Oversight agency responsibilities.
An oversight agency shall provide technical advice and counsel to
institutions and independent auditors when requested by the recipient.
The oversight agency may assume all or some of the responsibilities
normally performed by a cognizant agency.
15 CFR 29b.8 Recipient responsibilities.
A recipient that receives a Federal award and provides $25,000 or
more of it during its fiscal year to a sub-recipient shall:
(a) Ensure that nonprofit sub-recipients that receive $25,000 or more
have met the audit requirements of this part, and that sub-recipients
subject to part 29a, ''Audit Requirements for State and Local
Governments,'' have met the audit requirements of that part;
(b) Ensure that appropriate corrective action is taken within six
months after receipt of the sub-recipient audit report in instances of
noncompliance with Federal laws and regulations;
(c) Consider whether sub-recipient audits necessitate adjustment of
the recipient's own records; and
(d) Require each sub-recipient to permit independent auditors to have
access to the records and financial statements as necessary for the
recipient to comply with this part.
15 CFR 29b.9 Relation to other audit requirements.
(a) An audit made in accordance with this part shall be in lieu of
any financial audit required under individual Federal awards to the
extent that it provides the Department with the information and
assurances it needs to carry out its overall responsibilities, it shall
rely upon and use such information. However, the Department shall make
any additional audits or reviews necessary to carry out responsibilities
under Federal law and regulations. Any additional Federal audits or
reviews shall be planned and carried out in such a way as to build upon
work performed by the independent auditor.
(b) Audit planning within the Department shall consider the extent to
which reliance can be placed upon work performed by other auditors.
Such auditors include Federal, State, local, and other independent
auditors, and a recipient's internal auditors. Reliance placed upon the
work of other auditors should be documented and in accordance with
''Government Auditing Standards.''
(c) The provisions of this part do not limit the authority of the
Department to make or contract for audits and evaluations of Federal
awards, nor do they limit the authority of the Inspector General or
other Federal official.
(d) The provisions of this part do not authorize any institution or
sub-recipient thereof to constrain the Department, in any manner, from
carrying out additional audits, evaluations or reviews.
(e) The Department, when making or contracting for audits in addition
to the audits made by recipients pursuant to this part, shall,
consistent with other applicable laws and regulations, arrange for
funding the cost of such additional audits. Such additional audits or
reviews include financial audits, performance audits, and program
evaluations.
15 CFR 29b.10 Frequency of audit.
Audits shall usually be performed annually but not less frequently
than every two years.
15 CFR 29b.11 Sanctions.
No audit costs may be charged to Federal awards when audits required
by this part have not been made or have been made but not in accordance
with the provisions of this part. In cases of continued inability or
unwillingness to have a proper audit made in accordance with this part,
the Department shall consider appropriate sanctions including:
(a) Withholding a precentage of awards until the audit is completed
satisfactorily;
(b) Withholding or disallowing overhead costs, or
(c) Suspending Federal awards until the audit is made.
15 CFR 29b.12 Audit costs.
The cost of audits made in accordance with the provisions of this
part are allowable charges to Federal awards. The charges may be
considered a direct cost or an allocated indirect cost, determined in
accordance with the provisions of OMB Circulars A-21, ''Cost Principles
for Educational Institutions,'' or A-122, ''Cost Principles for
Nonprofit Organizations,'' 48 CFR part 31 of the Federal Acquisition
Regulations (FAR) or other applicable cost principles or regulations.
15 CFR 29b.13 Auditor selection.
In arranging for audit services, institutions shall follow the
procurement standards prescribed by OMB Circular A-110, ''Uniform
Administrative Requirements for Grants and Agreements with Institutions
of Higher Education, Hospitals and Other Nonprofit Organizations.''
15 CFR 29b.14 Small and minority audit firms.
(a) Small audit firms and audit firms owned and controlled by
socially and economically disadvantaged individuals shall have the
maximum practicable opportunity to participate in contracts awarded to
fulfill the requirements of this part.
(b) Recipients of Federal awards shall take the following steps to
further this goal:
(1) Ensure that small audit firms and audit firms owned and
controlled by socially and economically disadvantaged individuals are
used to the fullest extent practicable;
(2) Make information on forthcoming opportunities available and
arrange timeframes for the audit to encourage and facilitate
participation by small audit firms and audit firms owned and controlled
by socially and economically disadvantaged individuals;
(3) Consider in the contract process whether firms competing for
larger audits intend to subcontract with small audit firms and audit
firms owned and controlled by socially and economically disadvantaged
individuals;
(4) Encourage contracting with small audit firms or audit firms owned
and controlled by socially and economically disadvantaged individuals
which have traditionally audited government programs, and in cases where
this is not possible, assure that these firms are given consideration
for audit subcontracting opportunities;
(5) Encourage contracting with consortiums of small audit firms as
described in paragraph (b)(1) of this section when a contract is too
large for an individual small audit firm or audit firm owned and
controlled by socially and economically disadvantaged individuals; and
(6) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration in the solicitation
and utilization of small audit firms or audit firms owned and controlled
by socially and economically disadvantaged individuals.
15 CFR 29b.15 Scope of aduit and audit objectives.
(a) The audit shall be made by an independent auditor in accordance
with ''Government Auditing Standards'' developed by the Comptroller
General of the United States covering financial audits. An audit under
this part should be an organization-wide audit of the institution.
However, there may be instances where Federal auditors are performing
audits or are planning to perform audits at nonprofit institutions. In
these cases, to minimize duplication of audit work, a coordinated audit
approach may be agreed upon between the independent auditor, the
recipient, and the cognizant agency or the oversight agency. Those
auditors who assume responsibility for any or all of the reports called
for by 29b.18 should follow guidance set forth in ''Government Auditing
Standards'' in using work performed by others.
(b) The auditor shall determine whether:
(1) The financial statements of the institution present fairly its
financial position and the results of its operations in accordance with
generally accepted accounting principles;
(2) The institution has an internal control structure to provide
reasonable assurance that the institution is managing Federal awards in
compliance with applicable laws and regulations, and controls that
ensure compliance with the laws and regulations that could have a
material impact on the financial statements; and
(3) The institution has complied with laws and regulations that may
have a direct and material effect on its financial statement amounts and
on each major Federal program.
15 CFR 29b.16 Internal controls over Federal awards: compliance
reviews.
(a) General. The independent auditor shall determine and report on
whether the recipient has an internal control structure to provide
reasonable assurance that it is managing Federal awards in compliance
with applicable laws, regulations, and contract terms, and that it
safeguards Federal funds. In performing these reviews, independent
auditors should rely upon work performed by a recipient's internal
auditors to the maximum extent possible. The extent of such reliance
should be based upon the ''Government Auditing Standards.''
(b) Internal control review. (1) In order to provide this assurance
on internal controls, the auditor must obtain an understanding of the
internal control structure and assess levels of internal control risk.
After obtaining an understanding of the controls, the assessment must be
made whether or not the auditor intends to place reliance on the
internal control structure.
(2) As part of this review, the auditor shall:
(i) Perform tests of controls to evaluate the effectiveness of the
design and operation of the policies and procedures in preventing or
detecting material noncompliance. Tests of controls will not be
required for those areas where the internal control structure policies
and procedures are likely to be ineffective in preventing or detecting
noncompliance, in which case a reportable condition or material weakness
should be reported in accordance with 29b.18(c)(2); and
(ii) Review the recipient's system for monitoring sub-recipients and
obtaining and acting on sub-recipient audit reports.
(c) Compliance review. (1) The auditor shall determine whether the
recipient has complied with laws and regulations that may have a direct
and material effect on any of its major Federal programs. In addition,
transactions selected for non-major programs shall be tested for
compliance with Federal laws and regulations that apply to such
transactions.
(2) In order to determine which major programs are to be tested for
compliance, recipients shall identify, in their accounts, all Federal
funds received and expended and the programs under which they were
received. This shall include funds received directly from Federal
agencies, through other State and local governments or other recipients.
To assist recipients in identifying Federal awards, Federal agencies
and primary recipients shall provide the ''Catalog of Federal Domestic
Assistance'' (CFDA) numbers to the recipients when making the awards.
(3) The review must include the selection of an adequate number of
transactions from each major Federal financial assistance program so
that the auditor obtains sufficient evidence to support the opinion on
compliance required by 29b.18(c)(3). The selection and testing of
transactions shall be based on the auditor's professional judgment
considering such factors as the amount of expenditures for the program;
the newness of the program or changes in its conditions; prior
experience with the program particularly as revealed in audits and other
evaluations (e.g., inspections, program reviews, or system reviews
required by the FAR); the extent to which the program is carried out
through sub-recipients; the extent to which the program contracts for
goods or services; the level to which the program is already subject to
program reviews or other forms of independent oversight; the adequacy
of the controls for ensuring compliance; the expectation of adherence
or lack of adherence to the applicable laws and regulations; and the
potential impact of adverse findings.
(4) In making the test of transactions, the auditor shall determine
whether:
(i) The amounts reported as expenditures were for allowable services,
and
(ii) The records show that those who received services or benefits
were eligible to receive them.
(5) In addition to transaction testing, the auditor shall determine
whether:
(i) Matching requirements, levels of effort and earmarking
limitations were met,
(ii) Federal financial reports and claims for advances and
reimbursrement contain information that is supported by books and
records from which the basic financial statements have been prepared,
and
(iii) Amounts claimed or used for matching were determined in
accordance with
(A) OMB Circular A-21, ''Cost Principles for Educational
Institutions;''
(B) Matching or cost sharing requirements in OMB Circular A-110,
''Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations;''
(C) OMB Circular A-122, ''Cost Principles for Nonprofit
Organizations;''
(D) FAR (48 CFR part 31) cost principles; and
(E) Other applicable cost principles or regulations.
(6) Transactions related to other awards that are selected in
connection with examinations of financial statements and evaluations of
internal controls shall be tested for compliance with Federal laws and
regulations that apply to such transactions.
15 CFR 29b.17 Illegal acts.
If, during or in connection with the audit of a nonprofit
institution, the auditor becomes aware of illegal acts, such acts shall
be reported in accordance with the provisions of the ''Government
Auditing Standards.''
15 CFR 29b.18 Audit reports.
(a) Audit reports must be prepared at the completion of the audit.
(b) The audit report shall state that the audit was made in
accordance with the provisions of this part and OMB Circular A-133,
''Audits of Institutions of Higher Education and Other Nonprofit
Organizations.''
(c) The report shall be made up of at least the following three
parts:
(1) The financial statements and a schedule of Federal awards and the
auditor's report on the statements and the schedule. The schedule
should identify the major programs and show the total expenditures for
each program. Individual major programs other than Research and
Development and Student Aid should be listed by catalog number as
identified in the CFDA. Expenditures for Federal programs other than
major programs shall be shown under the caption ''other Federal
assistance.'' Also, the value of non-cash assistance such as loan
guarantees, food commodities or donated surplus properties or the
outstanding balance of loans should be disclosed in the schedule.
(2) A written report of the independent auditor's understanding of
the internal control structure and the assessment of control risk. The
auditor's report should include at a minimum:
(i) The scope of the work in obtaining understanding of the internal
control structure and in assessing the control risk;
(ii) The nonprofit institution's significant internal controls or
control structure. The auditor should identify the controls established
to ensure compliance with laws and regulations that have a material
impact on the financial statements and those that provide reasonable
assurance that Federal awards are being managed in compliance with
applicable laws and regulations; and
(iii) The reportable conditions, including the identification of
material weaknesses, identified as a result of the auditor's work in
understanding and assessing the control risk. If the auditor limits
consideration of the internal control structure for any reason, the
circumstances should be disclosed in the report.
(3) The auditor's report on compliance containing:
(i) An opinion as to whether each major Federal program was being
administered in compliance with laws and regulations applicable to the
matters described in 29b.16(c)(3) of this part, including compliance
with laws and regulations pertaining to financial reports and claims for
advances and reimbursements;
(ii) A statement of positive assurance of those items that were
tested for compliance and negative assurance on those items not tested;
(iii) Material findings of noncompliance presented in their proper
perspective:
(A) The size of the universe in number of items and dollars,
(B) The number and dollar amount of transactions tested by the
auditors, and
(C) The number and corresponding dollar amount of instances of
noncompliance.
(iv) Where findings are specific to a particular Federal award, an
identification of total amounts questioned, if any, for each Federal
award, as a result of noncompliance and the auditor's recommendations
for necessary corrective action.
(d) The three parts of the audit report may be bound into a single
document, or presented at the same time as separate documents.
(e) Nonmaterial findings need not be disclosed with the compliance
report but should be reported in writing to the recipient in a separate
communication. The recipient, in turn, should forward the findings to
the Federal grantor agencies or subgrantor sources.
(f) All fraud or illegal acts or indications of such acts, including
all questioned costs found as the result of these acts that auditors
become aware of, may be covered in a separate written report submitted
in accordance with the ''Government Auditing Standards.''
(g) The auditor's report should disclose the status of known but
uncorrected significant material findings and recommendations from prior
audits that affect the current audit objective as specified in the
''Government Auditing Standards.''
(h) In addition to the audit report, the recipient shall provide a
report of its comments on the findings and recommendations in the
report, including a plan for corrective action taken or planned and
comments on the status of corrective action taken on prior findings. If
corrective action is not necessary, a statement describing the reason it
is not should accompany the audit report.
(i) Copies of the audit report shall be submitted in accordance with
the reporting standards for financial audits contained in the
''Government Auditing Standards.'' Sub-recipient auditors shall submit
copies to recipients that provided Federal awards. The report shall be
due within 30 days after the completion of the audit, but the audit
should be completed and the report submitted not later than 13 months
after the end of the recipient's fiscal year unless a longer period is
agreed to with the cognizant or oversight agency.
(j) Recipients of more than $100,000 in Federal awards shall submit
one copy of the audit report within 30 days after issuance to a central
clearinghouse to be designated by OMB. The clearinghouse will keep
completed audit reports on file.
(k) Recipients shall keep audit reports, including sub-recipient
reports, on file for free three years from their issuance. (OMB control
number: 0991-0003)
15 CFR 29b.19 Audit resolution.
(a) As provided in 29b.6, the cognizant agency shall be responsible
for ensuring the resolution of audit findings that affect the programs
of more than one Federal agency. Resolution of findings that relate to
the programs of a single Federal agency will be the responsibility of
the recipient and that agency. Alternate arrangements may be made on a
case-by-case basis by agreement among the agencies concerned.
(b) A management decision shall be made within six months after
receipt of the reports by the Federal agencies responsible for audit
resolution. Corrective action should proceed as rapidly as possible.
15 CFR 29b.20 Audit workpapers and reports.
Workpapers and reports shall be retained for a minimum of three years
from the date of the audit report, unless the auditor is notified in
writing by the cognizant agency to extend the retention period. Audit
workpapers shall be made available upon request to the cognizant agency
or its designee or the General Accounting Office, at the completion of
the audit.
15 CFR 29b.21 Availability of publications.
(a) The following publications are available from the Government
Printing Office, Superintendent of Documents, Washington, DC 20402:
(1) ''Catalog of Federal Domestic Assistance'' and
(2) ''Government Auditing Standards.''
(b) The following publications may be obtained from the Grants
Officer as identified in the award:
(1) OMB Circular A-21, ''Cost Principles for Educational
Institutions;''
(2) OMB Circular A-110, ''Uniform Administrative Requirements for
Grants and Agreements with Institutions of Higher Education, Hospitals,
and Other Nonprofit Organizations;''
(3) OMB Circular A-122, ''Cost Principles for Nonprofit
Organizations;'' and
(4) OMB Circular A-133, ''Audits of Institutions of Higher Education
and Other Nonprofit Organizations.''
15 CFR 29b.21 Subtitle B -- Regulations Relating to Commerce and Foreign Trade
15 CFR 29b.21 15 CFR Ch. I (1-1-92 Edition)
15 CFR 29b.21 Census Bureau, Commerce
15 CFR 29b.21 CHAPTER I -- BUREAU OF THE CENSUS,
15 CFR 29b.21 DEPARTMENT OF COMMERCE
Part
Page
30 Foreign trade statistics
40 Training of foreign participants in census procedures and general
statistics
50 Special services and studies by the Bureau of the Census
60 Public information
70 Cutoff dates for recognition of boundary changes for the 1990
census
80 Furnishing personal census data from census of population
schedules
90 Procedure for challenging certain population and income estimates
100 Seal
101 -- 199 (Reserved)
15 CFR 29b.21 15 CFR Ch. I (1-1-92 Edition)
15 CFR 29b.21 Census Bureau, Commerce
15 CFR 29b.21 PART 30 -- FOREIGN TRADE STATISTICS
15 CFR 29b.21 Pt. 30
15 CFR 29b.21 Subpart A -- General Requirements-Exporters
Sec.
30.1 General statement of requirement for Shipper's Export
Declarations.
30.2 Related export control requirements.
30.3 Shipper's Export Declaration forms.
30.4 Preparation and signature of Shipper's Export Declarations.
30.5 Number of copies of Shipper's Export Declaration required.
30.6 Requirements as to separate Shipper's Export Declarations.
30.7 Information required on Shipper's Export Declarations.
30.8 Additional information required on Shipper's Export Declaration
for In-Transit Goods (Form 7513).
30.9 Requirements for separation and alignment of items on Shipper's
Export Declarations.
30.10 Continuation sheets for Shipper's Export Declaration.
30.11 Authority to require production of documents.
30.12 Time and place Shipper's Export Declarations required to be
presented.
30.13 -- 30.14 (Reserved)
30.15 Procedure for presentation of declarations covering shipments
from an interior point.
30.16 Corrections to Shipper's Export Declarations.
15 CFR 29b.21 Subpart B -- General Requirements-Exporting Carriers
30.20 General statement of requirement for the filing of manifests
and Shipper's Export Declarations by carriers.
30.21 Requirements for the filing of manifests.
30.22 Requirements for the filing of Shipper's Export Declarations by
departing carriers.
30.23 Requirements for the filing of Shipper's Export Declarations by
pipeline carriers.
30.24 Clearance or departure of carriers under bond on incomplete
manifest or Shipper's Export Declarations.
15 CFR 29b.21 Subpart C -- Special Provisions Applicable Under
Particular Circumstances
30.30 Values for certain types of transactions.
30.31 Identification of certain nonstatistical and other unusual
transactions.
30.32 (Reserved)
30.33 Vessels, planes, cargo vans, and other carriers and containers
sold foreign.
30.34 Return of exported cargo to the United States prior to reaching
its final destination.
30.35 -- 30.36 (Reserved)
30.37 Exceptions from the requirement for reporting complete
commodity detail on the Shipper's Export Declaration.
30.38 (Reserved)
30.39 Authorization for reporting statistical information other than
by means of individual Shipper's Export Declarations filed for each
shipment.
30.40 Single declaration for multiple consignees.
30.41 ''Split shipments'' by air.
15 CFR 29b.21 Subpart D -- Exemptions from the Requirements for the
Filing of Shipper's Export Declarations
30.50 Procedure for shipments exempt from the requirements for
Shipper's Export Declarations.
30.51 Government shipments not generally exempt.
30.52 Special exemptions for shipments to the U.S. armed services.
30.53 Special exemptions for certain shipments to U.S. Government
agencies and employees.
30.54 Special exemptions for mail shipments.
30.55 Miscellaneous exemptions.
30.56 Conditional exemptions.
30.57 Information on export declarations for shipments of types of
goods covered by 30.56 not conditionally exempt.
30.58 Exemption for shipments from the United States to Canada.
15 CFR 29b.21 Subpart E -- General Requirements-Importers
30.70 Statistical information required on import entries.
15 CFR 29b.21 Subpart F -- Special Provisions for Particular Types of
Import Transactions
30.80 (Reserved)
30.81 Imports of merchandise into Guam.
30.82 Identification of U.S. merchandise returned for repair and
reexport.
30.83 Statistical copy of mail and informal entries.
15 CFR 29b.21 Subpart G -- General Administrative Provisions
30.90 Confidential information, import entries and withdrawals.
30.91 Confidential information, Shipper's Export Declarations.
30.92 Statistical classification schedules.
30.93 Emergency exceptions.
30.94 Instructions to Customs.
30.95 Penalties for violations.
30.99 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
Authority: Title 13, United States Code, sections 301-307; and
title 5 United States Code, section 301; Reorganization Plan No. 5 of
1950; Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR
42765.
Source: 41 FR 9134, Mar. 3, 1976, unless otherwise noted.
Note: The term ''Customs Director'' or ''District Director of
Customs'' as used in this Part 30 means the Regional Commissioner of
Customs if the transaction is at the port of New York City; the
district director of customs if at the headquarters port of a customs
district other than New York City; and the customs officer in charge of
the port if at a nonheadquarters port.
15 CFR 29b.21 Subpart A -- General Requirements-Exporters
15 CFR 30.1 General statement of requirement for Shipper's Export
Declarations.
(a) Shipper's Export Declarations shall be filed by exporters or
their agents in accordance with the definitions, specifications, and
requirements of these regulations for all commodities, gold and silver,
except as specifically exempted herein, shipped as follows:
(1) To foreign countries or areas, including Foreign Trade Zones
located therein, (see 30.58 for exemptions for shipments from the
United States to Canada) from any of the following:
(i) The United States, including the 50 States and the District of
Columbia.
(ii) Puerto Rico.
(iii) Foreign Trade Zones in the United States or Puerto Rico.
(iv) The Virgin Islands of the United States.
(2) Between nonforeign areas as specified below then: 1002
(i) To Puerto Rico from the United States.
(ii) To the United States from Puerto Rico.
(iii) To the Virgin Islands of the United States from the United
States or Puerto Rico.
(b) Shipper's Export Declarations shall be filed for merchandise
moving as described above regardless of the method of transportation.
Instructions for the filing of Shipper's Export Declarations for
vessels, aircraft, railway cars, etc., when sold foreign appear in
30.33. Exemptions from these requirements and exceptions to some of the
provisions of these regulations for particular types of transactions
will be found in Subparts C and D of this part.
(41 FR 9134, Mar. 3, 1976, as amended at 41 FR 29374, July 16, 1976;
41 FR 42645, Sept. 28, 1976; 50 FR 13017, Apr. 2, 1985; 55 FR 49615,
Nov. 30, 1990)
0021Shipper's Export Declarations are not required for shipments from
the United States or Puerto Rico to the United States Possessions,
except to the Virgin Islands of the United States, or from a U.S.
Possession destined to the United States, Puerto Rico, or another U.S.
Possession.
15 CFR 30.2 Related export control requirements.
(a) Under the provisions of the Export Administration Regulations of
the Office of Export Administration in the International Trade
Administration, U.S. Department of Commerce (15 CFR Parts 368-399),2003
Shipper's Export Declarations are also required for shipments of
Merchandise from U.S. Possessions to foreign countries or areas. In
these regulations, the term U.S. Possessions includes the Virgin Islands
of the United States, Guam Island, American Samoa, Wake Island, Midway
Island, and Canton and Enderbury Islands.
(b) For all shipments to foreign countries or areas, the Shipper's
Export Declaration is an export control document. In preparing and
filing export declarations for shipments to foreign countries and areas,
therefore, the shipper must comply with all pertinent export control
regulations as well as the requirements of the statistical regulations
of this part. For convenience, a few provisions of the Export
Administration Regulations and of the Customs regulations closely
related to statistical requirements have been incorporated in these
regulations. Information concerning export control regulations and
information concerning agencies other than the Department of Commerce
exercising export control authority for particular types of commodities
may be obtained from the Office of Export Administration, International
Trade Administration, Washington, D.C. 20230, or from Department of
Commerce District Offices.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950,
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7213, Feb. 18, 1982)
0032See also the Export Administration Regulations of the Office of
Export Administration, which may be purchased from the Government
Printing Office or Department of Commerce District Offices.
15 CFR 30.3 Shipper's Export Declaration forms.
(a) Official forms, or privately printed forms conforming in every
respect to the official forms, shall be used in complying with
requirements for Shipper's Export Declarations as follows:
(1) Except for shipments for which the Shipper's Export Declaration
for In transit Goods (Commerce Form 7513) is required as specified
below, the Shipper's Export Declaration shall be prepared on Commerce
Form 7525-V or on Commerce Form 7525-V-Alternate (Intermodal). The
arrangement of Form 7525-V-Alternate (Intermodal) conforms to and is
designed for simultaneous preparation with various other shipping
documents commonly used, such as the dock receipt, short form bill of
lading, etc. Form 7525-V-Alternate (Intermodal) is acceptable in lieu
of Form 7525-V without limitation.
(2) For merchandise shipped in transit through the United States,
Puerto Rico, or the Virgin Islands of the United States from one foreign
country or area to another, including such merchandise destined from one
foreign place to another and transshipped in ports of the United States,
Puerto Rico, or the Virgin Islands of the United States, and for foreign
merchandise exported from General Order Warehouses, the Shipper's Export
Declaration for Intransit Goods (Commerce Form 7513) shall be filed.
Form 7513 shall also be filed for merchandise subject to government
inspection, examination, or permit arriving from a foreign country which
is rejected and exported. (Although Form 7513 provides that it is to be
used for foreign merchandise, it should be used also for U.S.
merchandise which after having been exported has been returned to or
through the United States and is again being exported under any of the
conditions described in this paragraph. Except for rejected merchandise,
Form 7513 is not to be used for the reexportation of goods for which
entry has been made on Customs Forms 7501 or 7502.)
(b) The Shipper's Export Declaration and the Continuation Sheet3 to
the Shipper's Export Declaration (both forms designated Commerce Form
7525-V), and the Shipper's Export Declaration for In-transit Goods
(Commerce Form 7513) may be purchased for a nominal price from Customs
Directors, Department of Commerce District Offices, and the
Superintendent of Documents, Government Printing Office, Washington,
D.C. 20402, or they may be privately printed. Supplies of the Alternate
Intermodal Shipper's Export Declaration and the Continuation Sheet to
the Alternate Intermodal Shipper's Export Declaration are not available
from Government sales offices but must be privately printed. Sample
official Alternate Intermodal Forms and their Continuation Sheets may be
obtained from the Foreign Trade Division, Bureau of the Census,
Washington, D.C. 20233. Privately printed Shipper's Export Declaration
forms must conform strictly to the respective official form in size,
wording, color, quality (weight of paper stock), and arrangement,
including the Office of Management and Budget approval number printed in
the upper-right hand corner of the face of form. The quality (weight)
of paper stock used in printing the Shipper's Export Declaration form is
not less than 16 nor more than 20 pounds commercial substance.
Occasional shippers may obtain copies of Shipper's Export Declarations
free of charge from local Customs Directors, Post Offices, and
Department of Commerce District Offices.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950,
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 47 FR 29829, July 9, 1982;
50 FR 23402, June 4, 1985)
3See 30.10 for instructions as to use of the continuations Sheet.
15 CFR 30.4 Preparation and signature of Shipper's Export Declarations.
(a) The Shipper's Export Declaration shall be prepared and signed by
the shipper, owner, or consignor, or his properly authorized agent. For
shipments to foreign countries, if the Shipper's Export Declaration is
prepared by an agent his authority to sign such declaration shall be in
the form of a properly executed power of attorney, signed by the
shipper, owner, or consignor, or in the less formal written
authorization printed on the export declaration. The power-of-attorney
shall be on file in the agent's office and available for inspection on
demand. In every event the data required in the Shipper's Export
Declaration shall be complete and correct and shall be based on personal
knowledge of the facts stated, or on invoices or information furnished
by the principal. Exporters who authorize the preparation of their
export declarations by an agent shall provide the agent with information
for this purpose which will in every respect meet the specifications in
30.7. Particular attention is called to the fact that invoices and other
commercial documents furnished to the agent for other purposes may not
necessarily contain all of the particular types of information needed
for the preparation of the export declaration, and special arrangements
should be made so that the information needed for the export declaration
is noted upon or accompanies the commercial documents furnished to the
agent, if he is to prepare the Shipper's Export Declaration.
(b) Shipper's Export Declarations shall be typewritten or prepared in
ink or other permanent medium (except indelible pencil). The use of
ditto, hectograph, or other duplicating process, as well as the
overprinting of selected items of information, is acceptable.
(c) All copies of the Shipper's Export Declaration shall contain all
of the information called for in the signature space as to name of firm,
address, name of signer, capacity of signer, etc. The original
Shipper's Export Declaration shall be signed in ink, but signature of
other copies is not required. The use of signature stamps is acceptable
as signature in ink. A duly signed legible carbon or other copy of the
export declaration is acceptable as an ''original'' of the Shipper's
Export Declaration.
15 CFR 30.5 Number of copies of Shipper's Export Declaration required.
(a) Except as provided elsewhere in these regulations the Shipper's
Export Declaration shall be delivered to the carrier or postmasters, as
specified in 30.12 and 30.15, in the following number of copies:
(1) In duplicate for shipments, except by mail, destined to all
foreign countries except Canada.
(2) One copy only for shipments to Canada (see 30.58 for exemption
for shipments from the United States to Canada) and nonforeign areas.
(3) One copy only for mail shipments to all destinations.
(b) In addition to the standard requirements set forth in paragraph
(a) of this section, additional copies of Shipper's Export Declarations
may be required for export control purposes by the regulations of the
Office of Export Administration or other Government agencies or in
particular circumstances by the Customs Director or by the postmaster.
(41 FR 9134, Mar. 3, 1976, as amended at 55 FR 49615, Nov. 30, 1990)
15 CFR 30.6 Requirements as to separate Shipper's Export Declarations.
Except as specifically provided in Subpart C, a separate Shipper's
Export Declaration (in the required number of copies -- see 30.5) is
required for each shipment (consisting of one or more kinds of
merchandise) from one consignor to one consignee on a single carrier.
In addition, more than one declaration is required for an individual
shipment as follows:
(a) For consignments by rail, truck, or other vehicle, requiring more
than one rail car, truck, or other vehicle, a separate export
declaration is required for the merchandise carried in each such rail
car, truck, or other vehicle. However, Customs Directors are authorized
to waive this requirement where multiple car shipments are made under a
single bill of lading or other loading document and are cleared
simultaneously.
(b)(Reserved)
(41 FR 9134, Mar. 3, 1976, as amended at 55 FR 47049, Nov. 9, 1990)
15 CFR 30.7 Information required on Shipper's Export Declarations.
The following information shall be furnished in the appropriate
spaces provided on the Shipper's Export Declaration and shall conform to
the requirements set forth in this section. (See 30.92 for information
as to the statistical classification Schedules B, C -- E, and D referred
to in this section. Also, see 30.8 for information required on Form
7513 in addition to these requirements.)
(a) Port of export. The name of the U.S. Customs port of exportation
shall be entered in terms of Schedule D, Classification of Customs
Districts and Ports. (See 30.20(c) for definition of port of
exportation.) For shipments by mail, the name of the Post Office where
the package is mailed shall be inserted in the space for U.S. port of
export.
(b) Method of transportation. Except on Commerce Form 7513, the
method of transportation by which the goods are exported (or shipped to
a nonforeign area where the declaration covers such a shipment) i.e.,
vessel (including ferry), air, or other, shall be indicated by check
mark in the appropriate space. For shipments by means of transportation
other than vessel or air the specific method of transportation (rail,
truck, pipeline, etc.) used should be entered. ''Other'' should be
checked for exported aircraft being flown away, vessels exported under
their own power or afloat, or for other vehicles exported other than
aboard another carrier, and the manner in which exported should be
specified; e.g., ''flown away,'' ''in tow,'' etc.
(c) Exporting carrier. Information concerning the specific exporting
carrier shall be reported as follows:
(1) For shipments by vessel, the name and flag nationality of the
ship and the number or name of the pier at which the goods were laden
shall be shown.
(2) For shipments by air, the name of the airline shall be reported.
(3) For shipments by other than vessel or air, the carrier shall be
identified by name and number or other available designation.
In all cases, the information shall be furnished as to the carrier
which transports the merchandise to a foreign country or to an ultimate
destination in a nonforeign area, and not as to a different carrier
which may have transported the goods to the seaport, airport, or border
port of export for final shipment.
(d) Name of exporter and exporter's Employer Identification Number --
(1) Name of exporter. In general, the exporter named on the Shipper's
Export Declaration shall be the principal or seller in the export
transaction. For exports moving under validated license, the exporter
named on the Shipper's Export Declaration shall be the licensee named on
the validated export license. The address of the exporter (number,
street, place, state) shall also be shown. (On Form 7513, if an
authorized agent is representing the exporter, the name of the exporter
as defined herein should be shown on the line labeled ''For account of''
where ''Principal or seller'' is indicated below the line on the form.)
(2) Exporter's Employer Identification Number. Exporters (or their
agents shall report the exporter's Internal Revenue Service Employer
Identification Number (EIN). If no internal Revenue Service EIN has been
assigned, the exporter's Social Security Number (SSN), preceded by the
symbol ''SS,'' should be reported. The exporter's SSN shall be reported
if, and only if, no Internal Revenue EIN has been assigned to the
exporter. If neither an Internal Revenue Service EIN nor an SSN has been
assigned, for example, in case of a foreign entity as the exporter, the
EIN or SSN reporting requirement does not apply.
(e) Agent of exporter (forwarding agent). The name and address of
the duly authorized forwarding agent (if any) of the exporter shall be
stated. (See 30.4.) (On Form 7513, the information as to agent (if
any) should be shown on the line labeled ''Exporter,'' where ''Actual
shipper or agent'' is indicated below the line on the form.)
(f) Ultimate consignee. The name and address (place, country) of the
ultimate consignee whether by sale in the United States or abroad or by
consignment shall be stated on the export declaration. For exports to
foreign countries, the ultimate consignee shall be the same person so
designated in the validated export license or authorized to be ultimate
consignee under the applicable general license in conformity with Export
Administration Regulations.
(g) Intermediate consignee. The name and address of the intermediate
consignee (if any) shall be stated. For exports to foreign countries,
the intermediate consignee shall be the person named as such in the
validated export license or authorized to act as such under the
applicable general license and in conformity with the Export
Administration Regulations. If there is no intermediate consignee, the
word ''none'' shall be entered on the Shipper's Export Declaration. (On
Form 7513 the name and address of the intermediate consignee (if any) in
a foreign country must be shown below the description of commodities
across columns 1 through 6.)
(h) Foreign port of unloading. For shipments by vessel and by air
the foreign port and country of unloading (i.e., the foreign port and
country at which the merchandise will be unlad-en from the exporting
carrier) shall be shown on the Shipper's Export Declaration in addition
to the country of ultimate destination. The reporting of ''optional''
ports of unloading is not permissible except as provided in the Export
Administration Regulations. 4005 Where optional ports of unloading are
named on the Shipper's Export Declaration under the permissible
conditions, a photocopy, carbon, or other legible copy of the originally
filed Shipper's Export Declaration indicating the actual port of
unloading shall be filed by the exporter or his agent with the Customs
Director as soon as the actual port of unloading is known to the
exporter. (See 30.16 of these regulations.) Information as to port of
unloading is required for shipments by vessel and air only.
(i) Country of destination. Country of destination shall be reported
on the Shipper's Export Declaration in terms of the names designated in
Schedule C-E, Classification of Country and Territory Designations for
U.S. Export Statistics, as follows:
(1) For shipments under validated export licenses, the country of
ultimate destination shown on the export decaration shall conform to the
country of ultimate destination as shown on the license.
(2) For shipments not moving under validated export license, the
country of ultimate destination as known to the exporter at the time or
exportation shall be shown on the export declaration. ''Country of
ultimate destination'' means the country in which the goods are to be
consumed or further processed or manufactured. The country to which the
goods are being shipped is not the country of ultimate destination for
purposes of preparing the Shipper's Export Declaration if the exporter
has knowledge at the time the goods leave the United States that they
are intended for reexport or transshipment in their present form to
another known country. For goods shipped to Canada, Panama, Hong Kong,
Belgium or The Netherlands for example, special care should be exercised
before reporting these countries as the ultimate destination, since
these are countries through which merchandise from the United States is
frequently transshipped. If the shipper does not know the ultimate
destination of the goods, the country of destination to be shown on the
export declaration is the last country, as known to the exporter at the
time of shipment from the United States, to which the goods are to be
shipped in their present form. (For instructions as to the reporting of
country of destination for vessels sold or transferred from the United
States to foreign ownership, see 30.33.)
(j) Marks and numbers. For purposes of identification of the export
declaration with the merchandise it covers, the marks, numbers, or other
identification shown on the packages should be inserted. This
information is not required for shipments by mail inasmuch as the
declaration is presented to the Postmaster with the packages being
mailed.
(k) Number and kind of packages. The number and kind of packages
(i.e., boxes, barrels, baskets, bales, etc.) shall be stated.
(l) Description of commodities and Schedule B number. The correct
commodity number as provided in Schedule B, Statistical Classification
of Domestic and Foreign Commodities Exported from the United States,
shall be entered in the space provided on the Shipper's Export
Declaration form, and a description of the merchandise shall be supplied
in the ''Description of Commodities'' column in sufficient detail to
permit the verification of the Schedule B commodity number. The name of
the commodity, in terms which can be identified or associated with the
language used in Schedule B (usually the commercial name of the
commodity), and any and all characteristics of the commodity which
distinguish it from commodities of the same name covered by other
Schedule B classifications shall be clearly and fully stated. Careful
reference to the Schedule B classification scheme for related
commodities as well as for the commodity being shipped is necessary in
order to establish which particular characteristics must be stated in
the description to permit verification of the correct Schedule B
commodity number and to eliminate any question that some other commodity
number might apply. A description of commodities in the kind of detail
specified above is a separate requirement, and the furnishing of the
correct Schedule B commodity number does not relieve the exporter of
furnishing, in addition, a complete and accurate commodity description
in accordance with this requirement. If the shipment is moving under a
validated license, the description shown on the export declaration shall
conform with that shown on the validated export license. However, where
the description on the license does not state all of the characteristics
of the commodity which are needed to completely verify the commodity
number, as described above, the missing characteristics, as well as the
description shown on the license, shall be stated in the commodity
description on the Shipper's Export Declaration.
(m) Export license number and expiration date (or general license
symbol). For exports to foreign countries the export license number and
expiration date, or the general license symbol shall be shown below the
description of the commodity.
(n) Net quantity. Where a unit of quantity is specified in Schedule
B for the commodity number in which the item is classified, net quantity
is required to be reported in the specified unit, and the unit in which
reported should be indicated on the declaration following the net
quantity figure. Where the unit of quantity specified in Schedule B is
''No.'' (number), ''Each'' or the abbreviation ''Ea.'' may be indicated
on the declaration as the unit of quantity. If no unit of quantity is
specified in Schedule B for a numbered classification, but a validated
export license for the item specifies a unit of quantity, the net
quantity shall be reported on the declaration in terms of the unit of
quantity specified in the validated license. If neither Schedule B nor
an applicable validated license specifies a unit of quantity for the
item, net quantity is not required to be reported, and an ''X'' should
be entered in the ''net quantity'' column on the Shipper's Export
Declaration. Where Schedule B calls for two units of quantity, net
quantity shall be reported in terms of both units. Where the specified
unit is in terms of weight (ounces, pounds, etc.) the net quantity
should reflect the net weight, exclusive of the weight of barrels,
boxes, or other bulky coverings, and exclusive of salt or pickle in the
case of salted or pickled fish or meats. Note, however, That for a few
commodities where ''content lb.,'' ''dry weight,'' or some similar
weight unit is specified in Schedule B, the net quantity to be reported
on the Shipper's Export Declaration may be less than the net weight. In
the expression of net quantities, fractions of one-half unit or upward
will be counted as a whole unit, and fractions of less than one-half
unit will be ignored, except that where the total net quantity is less
than one-half of the unit prescribed for the commodity in Schedule B
''Less than one-half (unit)'' should be reported. (For example, where
the unit for a given commodity is in terms of ''M board feet,'' a net
quantity of 8,400 board feet would be reported as ''8 M bd. ft.'' and a
net quantity of 900 board feet would be reported as ''1 M bd. ft.'';
however, a total net quantity of 450 board feet should not be ignored
but should be reported as ''less than one-half M bd. ft.''.)
(o) Gross (shipping) weight. In addition to specifying the net
quantity in the units required by Schedule B, the gross shipping weight
in pounds, including the weight of containers, shall be shown for all
shipments by vessel and air. However, for containerized cargo in lift
vans, cargo vans, or similar substantial outer containers, the weight of
such containers should not be included in the gross weight of the
commodities. If gross shipping weight information is not available for
individual Schedule B items for the reason that commodities covered by
more than one Schedule B number are contained in the same shipping
container, approximate shipping weights, estimated as accurately as is
practicable, may be shown on the Shipper's Export Declarations for each
Schedule B item in the container. The total of the estimated weights
must equal the actual shipping weight of the entire container or
containers and contents. Gross shipping weight is not required for
shipments by mail or for shipments by methods of transportation other
than vessel or air.
(p) ''D'' (Domestic) or ''F'' (Foreign). (1) The export declaration
covering exports to foreign countries shall show foreign goods
separately from goods of domestic production. Exports of foreign
merchandise include those commodities which are the growth, produce, or
manufacture of foreign countries which entered the United States,
including U.S. Foreign Trade Zones, as imports and which at the time of
exportation have undergone no change in form or condition or enhancement
in value by further manufacture in the United States, including U.S.
Foreign Trade Zones, Puerto Rico, or U.S. Possessions.
(2) Exports of domestic merchandise include those commodities which
are the growth, produce, or manufacture of the United States, including
U.S. Foreign Trade Zones, Puerto Rico, or U.S. Possessions (including
commodities incorporating foreign components), and those articles of
foreign origin which have been enhanced in value or changed from the
form in which imported by further manufacture or processing in the
United States, including U.S. Foreign Trade Zones, Puerto Rico, or U.S.
Possessions.
(3) The above distinction between domestic and foreign merchandise is
intended only for use in reporting on the Shipper's Export Declaration
and is intended for statistical purposes only.
(4) On the Shipper's Export Declaration in the column headed
''Specify 'D' or 'F''', domestic merchandise shall be identified by the
designation ''D'' and foreign merchandise shall be identified by the
designation ''F.'' On the Shipper's Export Declaration for In-Transit
Goods, Form 7513, one of the following statements, whichever is
appropriate, shall be shown across the body of the form within columns 1
through 6:
(i) For in-transit shipments of domestic (U.S.) merchandise, ''The
merchandise described herein is of the growth, production or manufacture
of the United States;'' and (ii) for in-transit shipments of foreign
merchandise, ''The merchandise described herein is of foreign origin.''
(q) Value. (1) In general, the value to be reported on the Shipper's
Export Declaration shall be the value at U.S. port of export (selling
price or cost if not sold, including inland freight, insurance, and
other charges to U.S. port of export) (nearest whole dollar; omit cents
figures). Port of Export (Selling price or cost if not sold, including
inland freight, insurance and other charges to U.S. port of export)
(Nearest whole dollar; omit cents figures).'' ''Selling price'' for
goods exported pursuant to sale is the exporter's price to his customer
net of any unconditional discounts from list price, but without
deducting any discounts which are conditional upon a particular act or
performance on the part of the customer. Commissions to be paid by a
U.S. exporter to his agent abroad, or to be deducted from the selling
price by the exporter's agent abroad should be excluded. For goods
shipped on consignment without a sale actually having been made at the
time of export, the ''selling price'' to be reported on the Shipper's
Export Declaration is the market value at the time of export at the
United States port from which exported.
(2) The value reported on the Shippers' Export Declaration shall
exclude: The cost of loading on the exporting vessel, aircraft, car or
vehicle at the port of exportation; freight, insurance, and any other
charges or transportation costs beyond the port of export; and any
duties, taxes, or other assessments imposed by foreign countries. The
value reported shall include inland or domestic freight or other charges
to the seaport, airport, or border port of exportation.
(3) The value to be reported as defined above is (or is equivalent
to) an f.a.s. (Free alongside ship) value. Therefore, where goods are
sold f.o.b. a U.S. point other than the port of exportation, freight,
insurance, and other costs to the border, sea, or airport of exportation
shall be added to the selling price (as defined above) for purposes of
reporting value on the Shipper's Export Declaration. If the actual
amount of such domestic costs is not available, an estimate of the
domestic costs shall be added. Where goods are sold at a ''delivered''
price, c.i.f. foreign destination, the cost of loading on the exporting
carrier at the port of exportation, if any, and freight, insurance, and
other costs beyond the port of exportation should be subtracted from the
price for purposes of reporting value on the Shipper's Export
Declaration. If the actual amount of such costs is not available, an
estimate of the costs should be subtracted. Costs added to or
subtracted from the selling price in accordance with the above
instructions should not be itemized or shown separately on the Shipper's
Export Declaration, but the value reported should be the value after the
making of such adjustments, where they are required to arrive at ''value
at U.S. port of export.'' In the expression of values in export
declarations, fractions of a dollar less than 50 cents should be
ignored, and fractions of 50 cents or upward should be counted as $1.
(4) For definitions of the value to be shown on the Shipper's Export
Declaration for special types of transactions where the commodities are
not being exported pursuant to commercial sales, or where subsidies,
government financing or participation, or other unusual conditions are
involved, see 30.30.
(r) Date of exportation. Information as to date of exportation is
not required to be reported for shipments by vessel or by mail. For
other shipments, the date of departure (or date of clearance, if date of
departure is not known) shall be shown on the Shipper's Export
Declaration as the date of exportation.
(s) Designation of agent and signature. For information regarding
the use of the space provided on Form 7525-V and 7525-V-Alternate
(Intermodal) for authorization of agent, and for requirements as to
signature, see 30.4.
(t) Point (state) of origin or Foreign Trade Zone number. (Not
required for in-transit merchandise documented on Form 7513.) (1) The
state in which the merchandise actually begins its movement in
international trade; that is, the state in which the merchandise
actually starts its journey to the port of export. For example, a
Shipper's Export Declaration covering merchandise laden aboard a truck
at a warehouse in Georgia for transport to Florida for loading onto a
vessel for export to a foreign country shall show Georgia as the state
of origin. This may not be the state where the merchandise was
produced, mined, or grown, or necessarily the state where the exporter
is located. The state designation to be shown shall be the U.S. Postal
Service's standard two-letter state abbreviation.
(2) For shipments of multistate origin, reported on a single SED,
report state of the commodity of the greatest value or, if such
information is not known at the time of export, the state in which the
commodities are consolidated for export.
(3) For merchandise exported from a U.S. Foreign Trade Zone, the
letters ''FTZ'' followed by the Foreign Trade Zone number shall be
reported.
(u) Containerized. (Not required for in-transit merchandise
documented on Form 7513.) This information is required to be shown for
vessel shipments only. A containerized shipment is one transported in
any size van-type container such as 8 x 8 x 20 or 8 x 8 x 40 .
Cargo originally booked as containerized cargo as well as that placed in
containers at the vessel operator's option shall be included.
(v) Parties to transaction. (Not required for in-transit merchandise
documented on Form 7513.) An export between related parties is one --
(1) From a U.S. person (U.S. exporter) to a foreign business
enterprise (foreign consignee) in which at anytime during the fiscal
year, the U.S. person owned or controlled, directly or indirectly, 10
percent or more of the voting securities of the foreign enterprise, if
an incorporated business enterprise; or an equivalent interest, if an
unincorporated business enterprise, including a branch; or
(2) From a U.S. business enterprise (U.S. exporter) to a foreign
person (foreign consignee) that, at anytime during the fiscal year,
owned or controlled, directly or indirectly, 10 percent or more of the
voting securities of the U.S. business enterprise, if an incorporated
business enterprise; or an equivalent interest if an unincorporated
business enterprise, including a branch.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950;
Department of Commerce Organization Order No. 35-2 A, Aug. 4, 1975, 40
FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59839, Nov. 22, 1977;
43 FR 50675, Oct. 31, 1978; 43 FR 56030, Nov. 30, 1978; 44 FR 1971,
Jan. 8, 1979; 45 FR 29567, May 5, 1980; 47 FR 29829, July 9, 1982; 50
FR 23402, June 4, 1985)
0054See Export Administration Regulations. (See footnote 2 to 30.2)
15 CFR 30.8 Additional information required on Shipper's Export
Declaration for In-Transit Goods (Form 7513).
In addition to the information required under 30.7, the following
information shall be shown on the Shipper's Export Declaration for
In-Transit Goods, Form 7513:
(a) U.S. port of arrival. The U.S. port at which the merchandise
covered by the declaration arrived from a foreign country shall be
shown.
(b) Country from which shipped. The name of the foreign country
where the goods were loaded on the carrier which transported the
merchandise to the United States from a foreign country shall be
indicated.
(c) Date of arrival. The date on which the merchandise arrived in
the United States shall be entered.
(d) Country of origin. The name of the country of origin as defined
in 30.70(f) shall be indicated.
15 CFR 30.9 Requirements for separation and alignment of items on
Shipper's Export Declarations.
For each Schedule B classification (see 30.7(l)) for which
merchandise is included in the shipment, a separate item shall be shown
on the Shipper's Export Declaration and the separate description of
commodities, shipping weight, ''D'' or ''F'' designation, Schedule B
commodity number, net quantity and value for the item shall be correctly
aligned horizontally, and clearly distinguishable from information
applying to other Schedule B items on the same declaration. However,
where merchandise covered by a single Schedule B classification is
moving under more than one general license, under more than one
validated export license, or under a validated export license which
shows two or more listings for the same Schedule B number, a separate
item shall be shown on the Shipper's Export Declaration for each license
or for each listing on the license. 5006 For merchandise moving under
validated license, information required by export control regulations as
to export license number and expiration date, and information as to
whether the export is a partial or complete shipment against the
license, shall be shown immediately below the corresponding description
of commodities on the Shipper's Export Declaration. Where two or more
items are classified under the same Schedule B number and moving under
the same general license, or where no license is required, the
quantities, values and shipping weights of such invoice items, wherever
practical, should be combined and the information shown on a single
horizontal line of the Shipper's Export Declaration. Commodities of
U.S. manufacture incorporating foreign components shall be reported
under the Schedule B number for the exported commodity, and a separate
item shall not be shown for the imported components. If the exporter
desires to record the imported components separately on the export
declaration for purposes of identification with a temporary import bond,
a notation may be made in the ''Description of Commodities'' column as
to the imported components that have been incorporated in the exported
commodity. In the preparation of the export declaration, shippers shall
conform to the line spacing on all copies.
(41 FDR 9134, Mar. 3, 1976, as amended at 50 FR 23403, June 4, 1985)
0065See 30.6 for prohibition against reporting general license
commodities on the same Shipper's Export Declaration with commodities
moving under a validated license.
15 CFR 30.10 Continuation sheets for Shipper's Export Declaration.
When more horizontal lines than the number provided on the Shipper's
Export Declaration form are required to list all of the merchandise
covered by the declaration, Continuation Sheets should be utilized. 6007
In lieu of official Continuation Sheets, additional copies of the
Shipper's Export Declaration form with no portion torn off or removed,
may be used as continuation sheets. All continuation sheets shall be
numbered in proper sequence and securely stapled to the first sheet,
which must be the export declaration itself. Each continuation sheet
shall show the Customs port of exportation and the country of ultimate
destination for the shipment. The following statement with the blank
filled in as appropriate shall be inserted on the last line of the
description column of the Shipper's Export Declaration itself:
''This declaration consists of this sheet and No. ------
continuation sheets.''
(41 FDR 9134, Mar. 3, 1976, as amended at 50 FR 23403, June 4, 1985)
0076See 30.3(b).
15 CFR 30.11 Authority to require production of documents.
For purposes of verifying the completeness and accuracy of the
information reported as required under 30.7 and 30.8, and for other
purposes under the regulations in this part, Customs is authorized to
require the owners and operators of exporting carriers, as well as the
exporters or their agents, either at the time of exportation or within a
period of 3 years subsequent thereto, to produce for inspection or
copying shipping documents, invoices, orders, packing lists,
correspondence, as well as any other relevant documents and to furnish
other information bearing upon a particular exportation. The Bureau of
the Census is similarly authorized to require the production of such
documents. Customs shall refuse to accept Shipper's Export Declarations
containing known errors and omissions, and may require their correction,
but acceptance by the Customs Director shall not be construed as
evidence that all requirements have been met, and such acceptance shall
not relieve the exporter of the responsibility to furnish complete and
correct information at a later time if all requirements have in fact not
been properly met.
15 CFR 30.12 Time and place Shipper's Export Declarations required to
be presented.
For shipments by mail, the Shipper's Export Declaration as required
in 30.1 shall be presented to the postmaster with the packages at the
time of mailing. For shipments other than by mail, except as otherwise
provided, the Shipper's Export Declaration in the number of copies
required by 30.5 shall be delivered to the exporting carrier prior to
exportation. It is the duty of the exporter (or his agent) to deliver
the required number of copies of the Shipper's Export Declaration to the
exporting carrier prior to exportation; failure of the exporter (or his
agent) to do so constitutes a violation of the provisions of these
regulations, and renders such exporter (or his agent) subject to the
penalties provided for in 30.95. For shipments by pipeline, the
Shipper's Export Declaration is not required to be presented prior to
exportation, and exportation will be permitted upon the understanding
that the exporter or his agent, within 4 working days after the end of
each calendar month, will file with the Customs Director having
jurisdiction for the pipeline, a Shipper's Export Declaration in the
number of copies specified in 30.5 to cover exports to each consignee
during the calendar month.
30.13 -- 30.14 (Reserved)
15 CFR 30.15 Procedure for presentation of declarations covering
shipments from an interior point.
For shipments from an interior point, the Shipper's Export
Declaration in the number of copies required in 30.5 may be prepared
and delivered by the exporter or his agent to the inland carrier to
accompany the merchandise to the exporting carrier at the seaport,
airport, or border port of exportation, or it may be otherwise delivered
directly to the exporting carrier. In either case, the Shipper's Export
Declaration must be in the exporting carrier's possession prior to
exportation. (See 30.6 for requirements for a separate set of
Shipper's Export Declarations, for each car, truck or other vehicle,
covering only the merchandise exported in that car, truck, or vehicle.)
15 CFR 30.16 Corrections to Shipper's Export Declarations.
Exporters (or their agents) shall report corrections, cancellations,
or amendments to information reported on Shipper's Export Declarations
to the Customs Director at the port of exportation (or, in the case of
mail shipments, to the Postmaster at the post office where the shipment
was mailed) as soon as the need to such correction, cancellation, or
amendment is determined. Such corrections, cancellations, or amendments
may be made directly onto the originally filed Shipper's Export
Declaration if the originally filed declarations have not already been
mailed to the Bureau of the Census. If the originally filed Shipper's
Export Declarations have already been mailed to the Bureau of the
Census, a photocopy, carbon, or other legible copy of the originally
filed Shipper's Export Declaration, on which the incorrect data are
neatly lined out and the corrected data entered thereon, shall be
promptly filed with the Customs Director at the port of exportation (or,
in the case of mail shipments, with the Postmaster at the post office
where the shipment was mailed). Such correction copies should have the
words ''CORRECTION COPY'' conspicuously shown in the upper right portion
of the form. The provisions of this paragraph relating to the reporting
of corrections, amendments, or cancellations of information, shall not
be construed as a relaxation of the requirements of the laws and
regulations pertaining to the preparation and filing of Shipper's Export
Declarations.
(42 FR 56604, Oct. 27, 1977)
15 CFR 30.16 Subpart B -- General Requirements-Exporting Carriers
15 CFR 30.20 General statement of requirement for the filing of
manifests and Shipper's Export Declarations by carriers.
(a) Carriers transporting merchandise from the United States, Puerto
Rico, or U.S. Possessions to foreign countries; from the United States
or Puerto Rico to the Virgin Islands of the United States; or between
Puerto Rico and the United States; shall not be granted clearance,
where clearance is required, and shall not depart, where clearance is
not required, until manifests (for vessels, aircraft, and rail carriers)
and Shipper's Export Declarations have been filed with the Customs
Director as specified below, except as provided in 30.24. Where for
reasons beyond the control of the exporting carrier, a given declaration
(or declarations) has not been received prior to exportation or
departure, and the merchandise has been laden, such carrier shall not as
a result of this circumstance be required to off-load the merchandise,
or to delay its clearance (where clearance is required) or departure (if
clearance is not required). However, the provisions of 30.24 remain
applicable.
(b) Except as otherwise specifically provided, declarations should
not be filed at the place where the shipment originates if it is to be
transshipped within the United States area before being dispatched to a
foreign country or to its final destination in a nonforeign area. This
applies to shipments originating in Puerto Rico or the Virgin Islands of
the United States being forwarded to the United States for transshipment
to another destination, and to shipments originating in the United
States and being forwarded to Puerto Rico or the Virgin Islands of the
United States for transshipment, as well as to merchandise being
transshipped in Customs Districts within the States of the United
States. In such cases, the declarations should be filed only with the
Customs Director at the actual port of exportation.
(c) For purposes of these regulations, the port of exportation is
defined as the Customs port at which or nearest to which the land
surface carrier transporting the merchandise crosses the border of the
United States into foreign territory, or, in the case of exportation by
vessel or air, the Customs port where the merchandise is loaded on the
vessel or aircraft which is to carry the merchandise to a foreign
country or to a nonforeign area of ultimate destination.
(41 FR 9134, Mar. 3, 1976, as amended at 41 FR 42645, Sept. 28, 1976)
15 CFR 30.21 Requirements for the filing of manifests.
(a) Vessels. Vessels transporting merchandise as specified in 30.20
(except vessels exempted by paragraph (d) of this section) shall file a
complete manifest on Customs Form 1374 or similar form approved by the
Customs Director. The manifest shall be filed with the Customs Director
at the respective ports where the merchandise is laden, and shall show
the destination of the vessel and list all the cargo so laden. For each
item of cargo, the manifest shall show the marks and numbers of the
packages; and a description of the articles, contents, quantities, and
values, shall be shown; however, a notation on the manifest that values
are as stated on the Shipper's Export Declaration, copies of which are
attached to such manifest, will be accepted. There shall also be shown
for each item of cargo the bill of lading number shown on the
declaration covering the item, except that bill of lading numbers are
not required on manifests covering cargo destined for Canada or a
nonforeign area. If an item on a manifest is one for which a Shipper's
Export Declaration is not required under the regulations in this part, a
notation shall be inserted on the manifest as to the basis for the
exemption. In lieu of a listing of cargo on Customs Form 1374, the list
of cargo may be shown on bills of lading, cargo lists, or other similar
commercial forms, attached to the manifest:
Provided, That the manifest is completely executed on Customs Form
1374 or similar form approved by the Customs Director, except for
particulars as to cargo: And provided also, That the bills of lading,
cargo lists, or other commercial forms are securely attached to that
form in such manner as to constitute one document; that they are
incorporated by suitable reference on the face of the form such as
''Cargo as per bills of lading attached,'' or ''Cargo as per commercial
forms attached,'' and that there is shown on the face of each bill the
information required by Customs Form 1374 for the cargo covered by that
document. The manifest of vessels clearing for foreign countries shall
also show the quantities and values of bunker fuel taken aboard at that
port for fueling use of the vessel, apart from such quantities as may
have been laden on vessels as cargo. The quantity of coal shall be
reported in tons, and the quantity of fuel oil shall be reported in
barrels of 42 gallons. Fuel oil shall be described in such manner as to
identify diesel oil as distinguished from other types of fuel oil.
(b) Aircraft. Aircraft transporting merchandise as specified in
30.20 shall file a complete manifest on Customs Form 7509. Such
manifest shall be filed with the Customs Director at the respective
ports where the merchandise is laden aboard the aircraft which is to
carry the merchandise to the foreign country or to its ultimate
destination in a nonforeign area, and shall list all the cargo so laden
and show, for each item, the air waybill number or marks and numbers on
packages, the number of packages, and the nature of the goods, except as
otherwise provided in this paragraph (b). In addition, for any item for
which a Shipper's Export Declaration is not required under the
regulations in this part, a notation as to the basis for the exemption
shall be inserted on the manifest, or on the waybill filed in lieu of
listing on the manifest as provided below. In lieu of listing the cargo
on the manifest:
(1) In the case of shipments on an air waybill, a copy of each
document may be attached to the cargo manifest, the numbers of such air
waybills listed in the body of the manifest, and the statement ''Cargo
as per Air Waybills Attached'' noted on the manifest, or (2) on direct
departures only, for shipments requiring a Shipper's Export Declaration
a copy of each export declaration may be attached to the cargo manifest.
In such case the Air Waybill numbers of such declaration shall be
listed on the cargo manifest in the column for air waybill numbers, and
the statement ''Cargo as per Export Declarations Attached'' noted on the
manifest. Under this alternative procedure, any shipments not requiring
a Shipper's Export Declaration shall be listed on the manifest, and a
notation as to the basis for the exemption shall be shown. For aircraft
carrying merchandise on direct flights between the United States and
Puerto Rico, where the conditions of 19 CFR 6.8(e) of the Customs
Regulations are met and complied with, a cargo manifest shall be
required only for any merchandise transported as cargo for which
Shipper's Export Declarations are required to be filed but which cannot
be timely filed. For cargo requiring Shipper's Export Declarations, a
declaration shall be made on the cargo manifest, or if none is required
under the provisions of this section, then either on the form for a
cargo manifest or the form for making a general declaration as required
by Customs Regulations. This declaration shall state either ''Attached
Shipper's Export Declarations together with the items (if any) listed on
the manifest represent a full and complete enumeration and description
of the cargo carried on this flight except that for which Shipper's
Export Declarations are not required'' or ''All required cargo documents
will be filed within the 4-day bond period,'' the latter statement to be
used in those instances where none of the Shipper's Export Declarations
are available at the time of departure. When the Shipper's Export
Declarations and any required cargo manifests are in fact subsequently
filed, they shall be accompanied by the following declaration:
Attached Shipper's Export Declarations represent a full and complete
enumeration and description (or complete/supplement enumeration and
description) of the cargo carried on aircraft no. ---- flight no. ----
cleared direct for ---- on ---- except that cargo for which Shipper's
Export Declarations are not required in accordance with the Foreign
Trade Statistics Regulations.
Airline ----------
Authorized Agent ----------
(c) Rail carriers. Rail carriers transporting merchandise as
specified in 30.20 shall file a car manifest. Such manifest shall be
filed with the Customs Director at the border port of exportation,
giving the marks and numbers, the name of the shipper or consignor,
description of goods and the destination thereof. The manifest may be a
waybill, or a copy thereof, or a copy of the manifest prepared for
foreign customs. For any item for which a Shipper's Export Declaration
is not required by these regulations, a notation on the manifest, or an
oral declaration to the Customs Director, shall be made by the carrier
as to the basis for the exemption.
(d) Carriers not required to file manifests. These regulations do
not require the filing of manifests by carriers other than vessels,
aircraft and rail carriers, nor by vessels under 5 net tons engaged in
trade with a foreign country otherwise than by sea, nor by vessels
specifically exempted from entry by section 441, Tariff Act of 1930, as
amended.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950,
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 44 FR 58687, Oct. 11, 1979)
15 CFR 30.22 Requirements for the filing of Shipper's Export
Declarations by departing carriers.
(a) To meet the requirements of 30.20 for the filing of Shipper's
Export Declarations, every departing carrier transporting merchandise as
specified in 30.20, including vessels, aircraft, rail carriers, trucks
and other vehicles, ferries, and every other carrier shall deliver to
the District Director of Customs at the port of exportation, with the
manifest of the carrier, if a manifest is required by the regulations in
this part, Shipper's Export Declarations prepared and signed by the
exporters or their agents covering all the cargo for which such
Shipper's Export Declarations are required by the regulations in this
part.
(b) The exporting carrier shall be responsible for the accuracy of
the following items of information (where required) on the declaration:
Name of carrier (including flag if vessel carrier), U.S. Customs port
of exportation, method of transportation from the United States, foreign
port of unloading, the bill of lading or air waybill number, and whether
or not containerized. For shipments to Canada exempt from Shipper's
Export Declaration filing requirements (See 30.58), the exporting
carrier shall enter the U.S. Customs port of exportation and method of
transportation from the United States on the bill of lading, air
waybill, or other documents that they prepare.
(c) Except as provided in paragraph (d) of this section, when a
transportation company finds, prior to the filing of declarations and
manifest as provided in paragraph (a) of this section, that due to
circumstances beyond the control of the transportation company or to
inadvertence, a portion of the merchandise covered by an individual
Shipper's Export Declaration has not been exported on the intended
carrier, the transportation company shall correct the descriptions and
the quantity, value and shipping weight (if any) amounts shown on the
declaration to reflect the amount actually exported on the carrier named
in the Shipper's Export Declaration. If a short shipment of this type
is discovered by the carrier after the Shipper's Export Declaration in
question has been delivered to the District Director of Customs, the
transportation company will immediately notify the District Director of
Customs so that a correction can be made by the Director on all copies
of the declaration if it is still in his possession. If the statistical
copy of the declaration has been transmitted by the Director to the
Bureau of the Census at the time of such notification, the Director will
require the exporter (or his agent) to file a ''Correction Copy'' of the
originally filed Shipper's Export Declaration as described in 30.16 of
these regulations. If the balance of the short-shipped merchandise is
subsequently exported, a new Shipper's Export Declaration, complete in
all detail, will be required. If the short-shipped merchandise is
exported on a carrier of the transportation company named in the
original declaration, and if such exportation is made within a
reasonable period, the District Director of Customs may accept a
declaration executed by such transportation company; otherwise the new
declaration shall be executed by the exporter or his agent. In any
event, the new declaration shall contain the following statement:
These commodities or technical data were included, but not shipped,
on a Shipper's Export Declaration filed at ---------- (Port) on
---------- (Date).
(d) When a shipment by air covered by a single Shipper's Export
Declaration is divided by the transportation company and exported in
more than one aircraft of the transportation company, the ''split
shipment'' procedure provided in 30.41 shall be followed by the
transportation company in delivering manifests and Shipper's Export
Declarations to the District Director of Customs.
(e) Exporting carriers are authorized to amend incorrect shipping
weights reported on Shipper's Export Declarations, and to prorate total
shipping weights among the individual commodities, where such carriers
are able to do so based upon information in their possession.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950;
Department of Commerce Organization Order No. 35-2A, Aug. 4, 1975, 40 FR
42765)
(41 FR 9134, Mar. 3, 1976, as amended at 43 FR 56030, Nov. 30, 1978;
44 FR 1971, Jan. 8, 1979; 55 FR 49615, Nov. 30, 1990)
15 CFR 30.23 Requirements for the filing of Shipper's Export
Declarations by pipeline carriers.
The operator of a pipeline may transport merchandise to a foreign
country without prior filing of Shipper's Export Declarations, on the
condition that within 4 days following the end of each calendar month
the pipeline operator will deliver to the Customs Director Shipper's
Export Declarations prepared by the exporter or his agent covering all
exportations through the pipeline to each consignee during the month.
15 CFR 30.24 Clearance or departure of carriers under bond on
incomplete manifest or Shipper's Export Declarations.
(a) For purposes of the regulations in this part, clearance (where
clearance is required) or permission to depart (where clearance is not
required) may be granted to any carrier by the Customs Director prior to
the filing of a complete manifest as required under the regulations in
this part, or prior to the filing by the carrier of all required
Shipper's Export Declarations, provided that a bond as specified in
paragraph (b) of this section is filed with the Customs Director. The
condition of the bond shall be that a complete manifest, where a
manifest is required by the regulations in this part, and all required
Shipper's Export Declarations, shall be filed by the carrier not later
than the fourth business day after clearance (where clearance is
required) or departure (where clearance is not required) of the carrier
for all carriers except as otherwise specifically provided in paragraphs
(a)(1) and (2) of this section.
(1) For shipments aboard a U.S. flag carrier between the United
States and Puerto Rico, or from the United States or Puerto Rico to the
Virgin Islands of the United States, the condition of the bond shall be
that a complete manifest (where a manifest is required) and all required
Shipper's Export Declarations shall be filed by the carrier not later
than the seventh business day after departure.
(2) For rail carriers to Canada, the condition of the bond shall be
that the manifest and all required Shipper's Export Declarations shall
be filed not later than the 15th business day after departure.
In the event that any required manifest and all required Shipper's
Export Declarations are not filed by the carrier within the period
provided by the bond, then a penalty of $50 shall be exacted for each
day's delinquency beyond the allowed period of 4 days, 7 days, or 15
days, as appropriate; and if the completed manifest, where required,
and all required Shipper's Export Declarations are not filed within 3
days following the period of 4 days, 7 days, or 15 days, allowed under
the bond, then for each succeeding day of delinquency a penalty of $100
shall be exacted, but no penalty shall exceed $1,000 in total.
Remission or mitigation of the penalties provided herein may be granted
in those cases where, in the judgment of the administering authority
provided in paragraph (b) of this section, the penalties were incurred
without willful negligence or fraud, or other circumstances justify a
remission or mitigation.
(b) Bonds filed in accordance with the provisions of this 30.24 may
take the form of a single entry bond on Customs Form 7567 in the amount
of $1,000 or of a term or blanket bond on Customs Form 7569 in the
amount of $10,000 or such larger amount as the Secretary of the Treasury
may prescribe, or in other approved form. Except as provided below in
this paragraph, there shall be shown on the bond, or on a separate
listing which refers to and is made a part of the bond, a pro forma list
of shipments on board the departing carrier for which Shipper's Export
Declarations have not been filed with the Customs Director. The list
shall show for each such shipment the name of the shipper, the country
to which exported, marks and numbers of the packages, the number and
kind of packages, a description of the goods and the value (or estimated
value). However, where such waiver will not interfere with the ability
of the Customs Director to check on performance under the bond, or with
the identification of the shipment for purposes of obtaining statistical
information in the event of failure of performance under the bond, the
Customs Director may waive the requirement for the pro forma list of
shipments for which declarations are missing, or may accept a list
containing less than the items of information enumerated above.
Approval of bonds and administration of the provisions of the
regulations in this part relating to performance by carriers under such
bonds, including remission and mitigation of penalties incurred by the
carriers, are hereby delegated to the Commissioner of Customs or his
delegate to be carried out in accordance with the provisions of section
623 of the Tariff Act of 1930, as amended, and the regulations of the
U.S. Customs Service issued pursuant thereto.
(41 FR 9134, Mar. 3, 1976, as amended at 41 FR 42645, Sept. 28, 1976)
15 CFR 30.24 Subpart C -- Special Provisions Applicable Under Particular Circumstances
15 CFR 30.30 Values for certain types of transactions.
The following special arrangements govern the values to be reported
for shipments of the following unusual types:
(a) Subsidized exports of agricultural products. Where provision is
made for the payment of an export subsidy to the exporter for the
exportation of agricultural commodities under a program of the
Department of Agriculture, the value required to be shown on the export
declaration is the f.a.s. value as defined in 30.7(q), based on the
selling price paid by the foreign importer, excluding the amount of the
subsidy.
(b) GSA exports of excess personal property. For exports of General
Services Administration excess personal property, the value to be shown
on the Shipper's Export Declaration will be the total of the estimated
''fair value,'' if any, at which the property was transferred to GSA by
the holding agency, plus charges, when applicable, to the port of
export, such as packing, rehabilitation, inland freight or drayage. The
estimated ''fair value'' may be zero, or it may be a percentage of the
original or estimated acquisition costs. (Export Declarations for such
shipments will bear the notation ''Excess Personal Property, GSA
Regulations 1-III, 303.03.'')
15 CFR 30.31 Identification of certain nonstatistical and other unusual
transactions.
In order to enable the Bureau of the Census to make a judgment as to
the statistical or other status of certain export transactions,
Shipper's Export Declarations covering the following types of
transactions should carry a statement beneath the commodity description
clearly identifying the transactions as such:
(a) Merchandise exported for repair only, and other temporary exports
to be returned to the United States which are not sold and do not enter
the trade of the country to which shipped, e.g., merchandise for
exhibition (not for exhibition and possible sale), horses or other
animals for breeding or grazing, etc.
(b) The return of merchandise previously imported for repair only and
other returns to the foreign shipper of temporarily imported merchandise
(declared as such on importation) on which no alteration or processing
has been performed; e.g., foreign merchandise being returned to the
country of origin after importation into the United States for
exhibition only.
(c) Shipments of material in connection with construction,
maintenance, and related work being done on projects for the U.S. Armed
Forces. Equipment and other material shipped for temporary use on such
projects and intended for return to the United States should be
identified separately from construction material or other goods which
will become a part of or which will be consumed in the construction or
maintenance work.
30.32 (Reserved)
15 CFR 30.33 Vessels, planes, cargo vans, and other carriers and
containers sold foreign.
(a) Vessels, locomotives, rail cars, ferries, trucks, other vehicles,
trailers, pallets, cargo vans, lift vans, or similar shipping containers
are not considered ''shipped'' in terms of these regulations in this
part when they are moving, either loaded or empty, without transfer of
ownership or title, in their capacity as carriers of merchandise or as
instruments of such carriers, and Shipper's Export Declarations are not
required therefor when so moving.
(b) However, Shipper's Export Declarations shall be filed for such
items, when moving as merchandise pursuant to sale or other transfer
from ownership in the United States to ownership abroad. When a new
vessel built in the United States for foreign account clears under a
certificate of record (Commerce Form 1316) a Shipper's Export
Declaration must be furnished by the agents or prepared by Customs for
statistical purposes. If a vessel, car, vehicle, or container, whether
in service or newly built or manufactured, is sold or transferred to
foreign ownership while in the Customs area of the United States or at a
port in such area, Shipper's Export Declarations shall be filed in
accordance with the general requirements of the regulations in this
part, at the port through or from which the vessel, car, vehicle, or
container first leaves the United States after sale or transfer. If the
vessel, car, vehicle, or shipping container is outside the Customs area
of the United States at the time of sale or transfer to foreign
ownership, Shipper's Export Declarations shall be filed at the last port
of clearance or departure from the United States prior to sale or
transfer. The country of destination to be shown on the Shipper's
Export Declaration for vessels sold foreign is the country of new
ownership. The country for which the vessel clears, or the country of
registry of the vessel, should not be reported as the country of
destination on the Shipper's Export Declaration unless such country is
the country of new ownership.
15 CFR 30.34 Return of exported cargo to the United States prior to
reaching its final destination.
(a) When a vessel carrying cargo which cleared from a port in the
U.S. Customs area returns to the U.S. Customs area before it reaches its
destination and discharges any or all of its cargo in the United States,
the Customs Director at the port of unlading shall notify the Foreign
Trade Division, Bureau of the Census, of this fact. The letter of
notification shall contain the following information: Name of the
carrier, dates of clearance, manifest numbers assigned at the various
Customs ports at which cargo was laden and the final disposition of all
cargo. If the vessel returns to the port at which the cargo was
originally laden, the letter of notification shall also include the bill
of lading numbers shown on each export declaration filed at the time of
clearance.
(b) For shipments by air where the Shipper's Export Declarations are
filed at the port of lading, if it becomes necessary because of an
emergency to unload part or all of the cargo at another port in the U.S.
Customs area (other than the port in Puerto Rico or U.S. Possession
which is its final destination), the Shipper's Export Declarations filed
at the port of lading need not be cancelled if the merchandise is
reladen on another plane at the second port within a reasonable time and
proceeds to its country of destination. If there is unreasonable delay
in reloading, the originally filed declarations should be cancelled and
new declarations should be filed at the second port of lading. If for
any reason, the merchandise remains permanently in the United States,
the Customs Director at the first port of lading must be notified to
cancel the Shipper's Export Declarations which have been filed. This
provision is not intended as an exception from the requirements of
30.12 as to the place at which Shipper's Export Declarations are
required to be filed; it is intended only for cases where an emergency
requires an unintended unloading after the requirements of 30.12 have
been met.
30.35 -- 30.36 (Reserved)
15 CFR 30.37 Exceptions from the requirement for reporting complete
commodity detail on the Shipper's Export Declaration.
(a) Where it can be determined that particular types of U.S.
Government shipments, or shipments for Government projects, are of such
nature that they should not be included in the export statistics, and
further, where no detriment to the export control program would be
involved, special arrangements can sometimes be made to waive compliance
with specific portions of the requirements of 30.7 with respect to the
reporting of detailed information on the Shipper's. Export Declaration.
Such exceptions will be made only upon application by the exporter and
specific authorization to the Customs Director and the exporter for the
particular project or shipment, approved by both the Bureau of the
Census and the Office of Export Administration, and will be conditioned
upon a prescribed identification which must appear upon the
declarations. The particular types of shipments for which such
exceptions may be possible are as follows:
(1) Shipments to a contractor under a Department of Defense or other
armed service contract for the construction of facilities for the use of
the U.S. armed services.
(2) Temporary exports by or to U.S. Government agencies.
(3) Shipments of supplies and material to contractors in the Panama
Canal Zone for the construction and/or maintenance of the Panama Canal
Zone and its facilities.
(b) Special exemptions to specific portions of the requirements of
30.7 with respect to the reporting of detailed information on the
Shipper's Export Declaration may also be granted by the Bureau of the
Census with the concurrence of the Office of Export Administration for
certain Department of Defense shipments, or shipments made on behalf of
the Department of Defense, to foreign governments under the cash
reimbursable provisions of the Mutual Defense Assistance Program
(military sales), if and when arrangements have been made for the Bureau
of the Census to obtain the desired statistical information other than
through the reporting of complete commodity detail on the Shipper's
Export Declaration.
30.38 (Reserved)
15 CFR 30.39 Authorization for reporting statistical information other
than by means of individual Shipper's Export Declarations filed for each
shipment.
(a) A Customs Director, if he finds that no administrative
difficulties are involved, may authorize the filing of one Shipper's
Export Declaration per month, in lieu of a declaration for each shipment
as required by 30.6, for the following types of frequently recurring
shipments by air from a single consignor from one U.S. airport to one
country of destination and one port of unlading via a single airline:
(1) Newspapers and magazines.
(2) Newsreel films, mats, proofs, etc.
(3) Airline timetables being shipped by the airline.
(4) Shipments of registered carrier stores by a United States or
Candian airline to each of its installations or agents abroad which are
exported under General License RCS of the Export Administration
Regulations set forth in 371.12(d) of this title. Such authorization
will be subject to the requirement that a declaration covering all such
shipments made during the month named on the declaration will be filed
by the consignor with the Customs Director no later than the fifth
working day of the month following the month covered, and also except
for shipments under paragraph (a)(4) of this section, subject to the
requirement that a Continuation Sheet or other attachment filed with the
declaration will list the names of the individual consignees and the
number of items shipped to each.
(b) In addition to the procedures authorized in paragraph (a) of this
section, the Bureau of the Census, with the concurrence of the Office of
Export Administration, may, on an individual case basis, authorize
exemption from the requirement of 30.6 that an export declaration be
filed for each shipment, the exemption to be conditioned upon the
filing, after the close of each month, of a single export declaration or
other statistical report, in an approved format including punch cards,
computer tapes, etc., covering shipments made during the month to all
destinations except countries prohibited by the Export Administration
Regulations of the Office of Export Administration (Parts 368-399 of
this title), /7/ as follows:
(1) Application for permission to file export information on a
monthly basis may be made directly to the Foreign Trade Division, Bureau
of the Census, Washington, D.C. 20233, with a copy sent to the Office of
Export Administration, International Trade Administration, Washington,
D.C. 20230.
(2) Authorization will be issued only when in the judgment of the
Bureau of the Census complete and accurate information will be available
on a monthly basis from the records of the applicant, and where the
exemption from the filing of a Shipper's Export Declaration for
individual shipments represents a reduction of reporting procedure in
the individual case. (In general, these special reporting procedures
will be limited to shippers who, on a continuing basis, make at least
twenty (20) shipments per month out of an individual port by each of any
one or more methods of transportation, and who are able to furnish
summary data each month in all the detail required for statistical
processing in terms of the various classifications and
cross-classifications now required for statistical purposes, such as
commodity data by port, by method of transportation and/or by name of
carrier.) Where export control is a consideration, such authorizations
will be granted when in the judgment of the Office of Export
Administration the applicant also has demonstrated that it has
established adequate internal operating procedures and has taken other
satisfactory safeguards to assure compliance with Export Administration
Regulations without government review of individual declarations.
(3)(i) Procedures for clearing individual shipments through Customs
without the presentation of a declaration, and the exact type of monthly
or other report to be delivered, will be discussed and specifications
developed in connection with each application.
(ii) Such authorizations will be subject to the requirement that
declarations or other approved summarizations containing the necessary
statistical information for all such shipments made during a given month
will be submitted no later than the fifth working day of the month
following the month of export. Moreover, records must be maintained in
such a manner that the Bureau of the Census, the Office of Export
Administration, or the U.S. Customs Service may, if desired, verify that
a given shipment was, in fact, included in a particular monthly report.
(c) Authorization for the filing of monthly declarations or other
summarizations under paragraphs (a) and (b) of this section may be
terminated at any time.
(d) Part 386 of the Department of Commerce Export Administration
Regulations contains complete information on the requirements of the
Office of Export Administration in connection with the granting of
authorizations for the filing of monthly summaries of export shipments.
(e) Exporters (or their agents) of merchandise for storage in Canada
but ultimately destined for third countries, the specific country of
destination being unknown at the time of exportation to Canada, must
report statistical information directly to the Bureau of the Census in
lieu of filing individual Shipper's Export Declarations for each
shipment. The information must be submitted in a format and on a time
schedule approved by the Bureau of the Census. The information required
will be no more detailed than that which would be reported on a
Shipper's Export Declaration.
(41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7213, Feb. 18, 1982;
55 FR 49615, Nov. 30, 1990)
/7/ Country groups are established and maintained by the Office of
Export Administration. See Export Administration Regulations (15 CFR
Parts 368-399) for lists of countries included in each country group.
15 CFR 30.40 Single declaration for multiple consignees.
As a further exception to the requirements of 30.6, shipper's are
authorized, subject to the approval of the Customs Director, to file one
Shipper's Export Declaration (in duplicate) for all shipments, other
than those made to U.S. Government agencies, offices, establishments, or
representatives of any of these which are laden on one vessel or
aircraft and destined to go to one port in Puerto Rico, the Virgin
Islands of the United States, or the Canal Zone. For such shipments no
consignee information needs to be furnished whether such shipments are
made to one or several consignees.
(41 FR 42645, Sept. 28, 1976)
15 CFR 30.41 ''Split shipments'' by air.
When a shipment by air covered by a single Shipper's Export
Declaration is divided by the exporting transportation company at the
port where the declaration is filed, and part of the shipment is
exported on one aircraft and part on another aircraft of the same
transportation company, the following procedure shall apply:
(a) The carrier will deliver the manifest copy of the declaration to
the District Director of Customs with the manifest covering the flight
on which the first part of the split shipment is exported, and will make
no changes on the declaration. However, the manifest will show in the
''number of packages'' column the actual portion of the declared total
quantity being carried and will carry a notation to indicate ''Split
Shipment.''
(b) On each subsequent manifest covering a flight on which any part
of a split shipment is exported, a prominent notation ''SPLIT SHIPMENT''
will be made adjacent to the item on the manifest for ready
identification. For the last shipment the notation will read ''SPLIT
SHIPMENT, FINAL.''
Each subsequent manifest covering a part of a split shipment shall
also show in the ''number of packages'' column only the merchandise
carried on that particular flight and a reference to the total amount
originally declared for export, e.g., 5 of 11, or 5/11; and immediately
following the line showing the portion of the split shipment carried on
that flight, a notation will be made showing the air waybill number
shown on the original Shipper's Export Declaration and the portions of
the originally declared total carried on each previous flight together
with the number and date of each such previous flight, e.g., original
Shipper's Export Declaration AWB 123; 2 of 11 flight 36A, June 6; 4 of
11, flight 40X, June 10.
(c) Export declarations will not be required for these subsequent
shipments.
15 CFR 30.41 Subpart D -- Exemptions from the Requirements for the Filing of Shipper's Export Declarations
15 CFR 30.50 Procedure for shipments exempt from the requirements for
Shipper's Export Declarations.
Except as provided below, where an exemption from the requirement for
the filing of a Shipper's Export Declaration is provided in this
subpart, a notation describing the basis for the exemption shall be made
on the bill of lading, air waybill, or other loading document for
carrier use, with a reference to the number of the section in this part
where the particular exemption is provided so that the carrier at the
time of lading, and the Customs Director at the time of exportation, may
verify that no declaration is required. If none of the above named
documents is used, the person transporting the merchandise must be
prepared to identify to the Customs Director at the port of exportation,
at the time of exportation but prior to departure, any merchandise which
is exempt from the requirement for the filing of a Shippers' Export
Declaration and explain to the Customs Director the basis for the
exemption. Where shipments are exempt from the requirement for
Shipper's Export Declarations on the basis of value and destination, the
appearance of the value and destination on the bill of lading, air
waybill, or other loading document for carrier use, shall be acceptable
as evidence of the exemption, and no reference need be made to the
particular section of these regulations where the exemption is provided.
15 CFR 30.51 Government shipments not generally exempt.
Except as provided below in this subpart, Shipper's Export
Declarations are required for exports by or to U.S. Government agencies,
whether or not shipped on a Government bill of lading. No general
exemption is provided for Government shipments, as such.
15 CFR 30.52 Special exemptions for shipments to the U.S. armed
services.
Shipper's Export Declarations are not required for the following
types of shipments to the U.S. armed services:
(a) All commodities, whether shipped commercially or through
government channels, consigned to the U.S. armed services for their
exclusive use, including shipments to armed services exchange systems.
(This exemption does not apply to shipments which are for the ultimate
use of the U.S. armed services but which are not consigned to the U.S.
armed services. However, special exceptions to the requirements of these
regulations which may in some circumstances apply to shipments for the
ultimate use of the U.S. armed services but not so consigned are
provided in 30.37.)
(b) Department of Defense Military Assistance Program Grant-Aid
shipments being transported as Department of Defense cargo under the
provisions of Customs Circular Letters VES-5-MA, March 8, 1954, (MC
133), VES-5-MA, June 17, 1954 (MC 133 S.1), VES-5-MA, May 24, 1956 (MC
133 S.2) and RES-20-MC, January 25, 1960 (CC 76). Under arrangements
with the Department of Defense, information on these shipments for
inclusion in U.S. export statistics will be furnished directly to the
Bureau of the Census by the Department of Defense. This exception from
the filing of Shipper's Export Declarations does not apply to Military
Assistance Program Grant-Aid shipments to which a foreign government has
taken title before exportation or to any Grant-Aid Military-Aid Program
shipment moving in any manner other than as Department of Defense cargo.
(See 30.37 for possible exceptions to the full reporting requirements
of 30.7 for certain military sales shipments not exempt from the
requirement for the Shipper's Export Declaration.)
15 CFR 30.53 Special exemptions for certain shipments to U.S.
Government agencies and employees.
Shipper's Export Declarations are not required for the following
types of shipments to U.S. Government agencies and employees:
(a) Office furniture, office equipment, and office supplies shipped
to and for the exclusive use of U.S. Government offices.
(b) Household goods and personal property shipped to and for the
exclusive and personal use of U.S. Government employees.
(c) Food, medicines, and related items and other commissary supplies
shipped to U.S. Government offices or employees for the exclusive use of
such employees, or to U.S. Government employee cooperative or other
associations for subsequent sale or other distribution to such
employees.
(d) Books, maps, charts, pamphlets, and similar articles shipped by
U.S. Government offices to U.S. or foreign libraries, government
establishments or similar institutions.
(e) All commodities shipped to and for the exclusive use of the
Panama Canal Zone Government or the Panama Canal Company.
15 CFR 30.54 Special exemptions for mail shipments.
Shipper's Export Declaration are not required for the following kinds
of shipments by mail:
(a) Shipments (except shipments requiring a validated export license)
where one or more of the following conditions are present:
(1) Either the consignor or the consignee is not a business concern.
(2) The shipment is valued at $500 or under.
(3) The goods are not mailed for commercial consideration.
(b) Technical data regardless of value, licensing requirements, and
the other criteria set forth in paragraph (a) of this section.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950,
Department of Commerce Order No. 35-2A, Aug. 4, 1975, 40 FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 44 FR 38833, July 3, 1979)
15 CFR 30.55 Miscellaneous exemptions.
Shipper's Export Declarations are not required for the following
kinds of shipments:
(a) Diplomatic pouches and their contents.
(b) Human remains and accompanying appropriate receptacles and
flowers.
(c) Shipments from one point in the United States to another thereof
by routes passing through Mexico.
(d) Shipments from one point in Mexico to another point thereof by
routes through the United States.
(e) Shipments, other than by vessel, or merchandise for which no
validated export licenses are required, transported in bond through the
United States, and exported from another U.S. port, or transshipped and
exported directly from the port of arrival.
(f) Shipments to foreign libraries, government establishments, or
similar institutions, as provided in 30.53(d).
(g) Shipments of single gift parcels as encompassed by Office of
Export Administration General License GIFT.
(h) Except as noted below, shipments destined to Canada, Country
Groups T or V (See Supplement No. 1 to part 770 of the Export
Administration Regulations -- 15 CFR), Puerto Rico, or the Virgin
Islands of the United States where the value of commodities, shipped
from one exporter to one consignee on a single exporting carrier,
classified under the individual Schedule B number(s) is $2,500 or less.
(1) This exemption applies to individual Schedule B commodity numbers
regardless of the total shipment value. In instances where a shipment,
meeting the above criteria, contains a mixture of individual Schedule B
commodity numbers valued $2,500 and less and individual Schedule B
commodity numbers valued over $2,500, thus necessitating the preparation
of a Shipper's Export Declaration, those commodity numbers valued $2,500
and less should not be reported on the declaration.
(2) This exemption does not apply to shipments:
(i) Exported through the U.S. Postal Service (See 30.54).
(ii) Requiring a Department of Commerce validated export license
(Individual, Project, Distribution, and Service Supply) (15 CFR, parts
772 and 773).
(iii) Requiring a Department of State, Office of Defense Trade
Controls export license under the International Traffic in Arms
Regulations (ITAR-22 CFR, parts 121-130).
(iv) Subject to the ITAR but exempt from license requirements.
(v) Requiring a Department of Justice, Drug Enforcement
Administration export permit (21 CFR, part 1312).
This exemption shall be conditioned upon the filing of such reports
as the Bureau of the Census shall periodically require to compile
statistics on $2500 and under shipments.
(i) Shipments of interplant correspondence, executed invoices and
other documents, and other shipments of company business records from a
U.S. firm to its subsidiary or affiliate.
(j) Shipments of pets as baggage, accompanied or unaccompanied, of
persons leaving the United States, including members of crews on vessels
and aircraft.
(k) Shipments for use in connection with NASA tracking systems under
Office of Export Administration Project License DL-5355-S.
(l) Shipments of aircraft parts and equipment, and food, saloon, slop
chest, and related stores, provisions, and supplies for use on aircraft,
by a U.S. airline to its own installations, aircraft, and agents abroad,
under Department of Commerce, Office of Export Administration General
License RCS.
(m) Shipments for use in connection with NOAA operations under the
Office of Export Administration General License G-NOAA.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950,
Department of Commerce Order No. 35-2A, Aug. 4, 1975, 40 FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7214, Feb. 18, 1982;
55 FR 21187, May 23, 1990; 55 FR 49615, Nov. 30, 1990)
15 CFR 30.56 Conditional exemptions.
Shipper's Export Declarations are not required for the following
classes of commodities when they are not shipped as cargo under a bill
of lading or an air waybill and do not require a validated export
license, but the exporter should be prepared to make oral declaration to
the Customs Director, if required:
(a) Baggage and personal effects, accompanied or unaccompanied, of
persons leaving the United States, including members of crews on vessels
and aircraft, such as:
(1) Usual and reasonable kinds and quantities of wearing apparel,
articles of personal adornment, toilet articles, medicinal supplies,
food, souvenirs, games, and similar personal effects and their
containers.
(2) Usual and reasonable kinds and quantities of furniture, household
effects household furnishings, and their containers.
(3) Usual and reasonable kinds and quantities of vehicles, such as
passenger cars, station wagons, trucks, trailers, motorcycles, bicycles,
tricycles, perambulators, and their containers.
Provided, That the above-indicated baggage and personal effects (i)
shall include only such articles as are owned by such person or members
of his immediate family; (ii) shall be in his possession at the time of
or prior to his departure from the United States for the foreign
country; (iii) are necessary and appropriate for the use of such person
or his immediate family; (iv) are intended for his use or the use of
his immediate family; and (v) are not intended for sale.
(b) Tools of trade of persons leaving the United States covering
usual and reasonable kinds and quantities of implements, instruments and
tools of trade, occupation, or employment and their containers.
Provided, That the above-indicated tools of trade (1) shall include only
such articles as are owned by such persons; (2) shall be in his
possession at the time of or prior to his departure from the United
States for a foreign country; (3) are necessary and appropriate and
intended for the personal use of such person; and (4) are not intended
for sale.
(c) Carriers' stores (including merchandise carried in ships aboard
carriers for sale to passengers), supplies, and equipment for departing
vessels, planes, or other carriers, including usual and reasonable kinds
and quantities of bunker fuel, deck engine and steward department
stores, provisions and supplies, medicinal and surgical supplies, food
stores, slop chest articles, and saloon stores or supplies for use or
consumption on board and not intended for unlading in a foreign country,
and including usual and reasonable kinds and quantities of equipment and
spare parts for permanent use on the carrier when necessary for proper
operation of such carrier and not intended for unlading in a foreign
country. Hay, straw, feed, and other appurtenances necessary to the
care and feeding of livestock while enroute to a foreign destination are
considered part of carriers' stores of carrying vessels, trains, planes,
etc.
(d) Dunnage of usual and reasonable kinds and quantities necessary
and appropriate to stow or secure cargo on the outgoing or any immediate
return voyage of an exporting carrier, when exported solely for use as
dunnage and not intended for unlading in a foreign country.
15 CFR 30.57 Information on export declarations for shipments of types
of goods covered by 30.56 not conditionally exempt.
(a) In those cases where Shipper's Export Declarations are required
for articles enumerated in 30.56 (a) through (d) only by virtue of
their being shipped under a bill of lading or an air waybill (no
validated license is required) the export declaration should clearly
show in the column for commodity description, in lieu of the complete
commodity description a statement that the shipment consists of baggage,
personal effects, household effects, ship's stores, crew's effects, or
as appropriate. In such cases, Schedule B commodity numbers should not
be shown on the declarations.
(b) In those cases where the articles enumerated in 30.56 (a)
through (d) require a validated export license (whether or not shipped
under a bill of lading or an air waybill) the Shipper's Export
Declaration must identify the shipment as baggage, personal effects,
etc., and must contain all the information normally required for any
exportation made under a validated export license, i.e. complete
commodity description, license number, Schedule B number, quantity,
value, etc.
15 CFR 30.58 Exemption for shipments from the United States to Canada.
(a) Except as noted in paragraph (c) of this section, shipments
originating in the United States where the country of ultimate
destination (see 30.7(i)) is Canada are exempt from the Shipper's
Export Declaration requirements of this part. This exemption also
applies to shipments from one point in the United States or Canada to
another point thereof by routes passing through the other country.
(b) The Harbor Maintenance Fee applies to shipments by vessel exempt
from Shipper's Export Declaration requirements by virtue of being
destined to Canada.
(c) This exemption does not apply to the following shipments: (The
Bureau of the Census also reserves the right to reinstate the Shipper's
Export Declaration requirements of this part in specific instances for
the purpose of ensuring statistical accuracy.)
(1) Requiring a Department of Commerce validated export license.
(2) Requiring a Department of State, Office of Defense Trade
Controls, export license under the International Traffic in Arms
Regulations (ITAR-22 CFR parts 121-130).
(3) Subject to the ITAR but exempt from license requirements.
(4) Requiring a Department of Justice, Drug Enforcement
Administration, export declaration (21 CFR part 1313).
(5) For storage in Canada but ultimately destined for third
countries, the specific country of destination being unknown at the time
of export to Canada (see 30.39 for reporting requirements).
(55 FR 49615, Nov. 30, 1990)
15 CFR 30.58 Subpart E -- General Requirements-Importers
15 CFR 30.70 Statistical information required on import entries.
Information for statistics on merchandise entering the United States
from foreign countries, U.S. Foreign Trade Zones, and from the Virgin
Islands of the United States, and other nonforeign areas (except Puerto
Rico), is required to be reported by importers on the following Customs
entry and withdrawal forms respectively required by U.S. Customs
regulations for individual transactions: Custom Forms 7500, 7501, 7502,
7505, 7506, 7519, 7521, and 7535, and on Customs Form 7512 when used as
an intransit entry to document immediate exportation or transportation
and exportation. The following items of information for statistics
shall be reported on the respective forms: 9010
(a) District and port code. (All forms.) The Customs district code
number and the port code number (as shown in Schedule D, Classification
of Customs Districts and Ports) for the Customs port of entry or filing
shall be supplied. (Where Customs does not require that the District
and Port codes be inserted by importers, the codes will be filled in by
Customs so that all entries and withdrawals received by the Bureau of
the Census will bear these codes.)
(b) Importing vessel or carrier. (Not required for merchandise
entering U.S. Customs territory from U.S. Foreign Trade Zones.) (1)
(Customs Forms 7501, 7502, 7512, and 7521.) Information is required as
to the carrier or means of transportation by which the merchandise was
transported from a foreign country to the first port of unloading in the
United States. If the merchandise has been further transported in bond
between ports in the United States after having been unladen from the
carrier on which it arrived in the United States, the name of the
domestic carrier shall not be substituted, and the information furnished
shall reflect the name of the carrier or means of transportation by
which the merchandise arrived in the first U.S. port of unlading.
(2) For merchandise arriving in the United States by vessel, the name
of the importing vessel is required. The importing vessel is the vessel
which transported the merchandise from the foreign port of lading to the
first U.S. port of unlading.
(3) For merchandise arriving in the United States by air, the name
and nationality of the importing airline is required. The importing
airline is the airline which carried the merchandise from the foreign
port of lading to the first U.S. port of unlading, and not a domestic
airline carrying the merchandise after the initial unlading in the
United States.
(4) For merchandise arriving in the United States by means of
transportation other than vessel or air, the means of transportation
from the foreign country is required, in such terms as ''parcel post,''
''registered mail,'' ''railroad,'' ''trucks,'' ''pipeline,'' etc.
(c) Foreign port of lading. (1) (Customs Forms 7501, 7502, 7512 and
7521.) For merchandise arriving in the United States by vessel or air,
the name and country of the foreign port at which the merchandise was
actually loaded on the vessel or aircraft that carried the merchandise
to the United States is required. This information is not required for
merchandise entering the U.S. Customs territory from a U.S. Foreign
Trade Zone. For shipments originating in either Canada or Mexico by
rail, truck, pipeline, or other nonvessel/nonair mode of transportation,
supply the name of the province (Canada) or state (Mexico) where the
merchandise was first loaded for exportation to the United States.
(2) For merchandise transshipped overseas in the course of shipment
to the United States, whether or not covered by a through bill of
lading, the information furnished shall reflect only the foreign port at
which the merchandise was loaded on the vessel, aircraft, or other
carrier which transported it to the first U.S. port of unlading.
Neither the foreign port of original lading nor any port of lading other
than the last foreign port of lading shall be substituted. When a
single Customs form covers merchandise loaded at more than one foreign
port, the foreign port of lading shall be indicated separately in the
''Marks and numbers and Country of origin'' column immediately below the
Country of origin designation and on the same line as the merchandise
laden at each foreign port.
(3) For merchandise entering the U.S. Customs territory from a U.S.
Foreign Trade Zone, the number of the Foreign Trade Zone, preceded by
the letters ''FTZ'' shall be shown in this space.
(d) U.S. port of unlading. (Not required for merchandise entering
U.S. Customs territory from U.S. Foreign Trade Zones.) (1) (Customs
Forms 7501, 7502, 7512, and 7521.) For merchandise arriving in the
United States by vessel or air, the U.S. port (as listed in Schedule D)
at which the merchandise was unloaded from the importing vessel or
aircraft is required, whether or not such port is a Customs port of
entry. (For example, if entry is filed at the Port of Los Angeles for
merchandise unloaded from the importing vessel at Long Beach,
California, the entry should show Long Beach as the port of unlading.)
(2) When merchandise is transported in bond from the U.S. port where
unladen from the importing vessel or carrier to another U.S. port or
ports to be entered for consumption or warehouse, the port of unlading
required to be shown on the consumption or warehouse entry is the port
or point where the merchandise was unladen from the importing vessel or
carrier before transportation in bond.
(e) Date of importation. (All forms.) For merchandise arriving in
the United States by vessel, the month, day, and year on which the
importing vessel transporting the merchandise from the foreign country
arrived within the limits of the U.S. port at which the merchandise was
or is to be unladen is required. The date of importation to be reported
for merchandise arriving in the United States other than by vessel is
the date on which the merchandise arrives within the limits of the
United States.
(f) Country of origin. (1) (All forms.) Country of origin shall be
reported in the ''marks and numbers and country of origin'' column on
entry and withdrawal forms (in the ''marks and numbers'' column on Forms
7512 and 7500), the ''country of origin'' space on the Special Customs
Invoice form, and in a conspicuous place on commercial invoices supplied
to Customs where the Special Customs Invoice form is not required. On
multipage entries, country of origin should be shown on each page.
(2) Country of origin shall be reported in terms of the names
designated in Schedule C-I, ''Classification of Country and Territory
Designations for U.S. Import Statistics,'' unless a more specific
geographic area is required to be shown for other purposes. The country
of origin is defined as the country in which the product was mined,
grown or manufactured. Further labor, work or material added to an
article in another foreign country or the Virgin Islands of the United
States must effect a substantial transformation in order to render such
other country the ''country of origin.'' Such substantial
transformations include smelting of ores, refining of crude products,
and the like. The country of origin is not changed when the merchandise
is subjected in another country merely to minor manipulations, such as
sorting, grading, and the like. When the merchandise is invoiced in or
exported from a country other than that in which it originated, the
actual country of origin shall be specified rather than the country of
invoice or exportation. The country of origin for imports of scrap and
waste is the country in which the merchandise was reduced to scrap or
waste. In the case of such commodities as industrial diamonds or
antiques, if the origin of the merchandise is not known or cannot be
ascertained with reasonable effort, the country from which the
merchandise has been shipped shall be shown and shall be indicated as
the ''Country of Shipment.''
(3) Except as provided below, the country of origin shown on import
entries and withdrawals should be based on information furnished by the
foreign supplier on import invoices. The importer should inform his
foreign supplier of the requirements and definitions of this section and
instruct the foreign supplier to furnish information on the invoice as
to country of origin in accordance with the above definition. If an
invoice from the foreign supplier is not available at the time of entry,
the importer shall enter the correct country of origin according to his
best knowledge. In any case where the importer has reliable knowledge
that the country of origin shown on the invoice is incorrect, he shall
enter on the form the correct country of origin according to his best
knowledge, indicating that it is a correction.
(4) When a single Customs form covers merchandise from more than one
country of origin, the country of origin shall be indicated separately
against each item (or group of items).
(g) Description of merchandise. (All forms.) Except on Customs Form
7512 when used as an Immediate Exportation or Transportation and
Exportation entry, the description of merchandise shall be in terms of
the Tariff Act in accordance with the Tariff Schedules of the United
States Annotated for Statistical Reporting (TSUSA) and in sufficient
detail to permit the identification of the TSUSA statistical reporting
number to which each commodity properly belongs. The name of the
commodity and any and all characteristics of the commodity which
distinguish it from commodities of the same name covered by other TSUSA
statistical reporting numbers shall be clearly and fully stated. For
merchandise classified in TSUSA classifications for which the
instruction ''specify by name'' is shown in TSUSA the specific name of
the commodity or a further identifying description in addition to the
description in the more general terms of the commodity classification
definition is required. When Customs Form 7512 is used as an Immediate
Exportation or Transportation and Exportation entry importers need only
report in terms of the first five digits of TSUSA (i.e., in terms of
TSUS).
(h) Gross weight in pounds. (Customs Forms 7501, 7502, 7512, and
7521, for merchandise transported to the United States by vessel or air
only.) Gross shipping weight in pounds shall be reported in column (2a)
immediately below the description of merchandise (in ''Gross Weight in
Pounds'' column on Form 7512 on the same horizontal line with value).
Separate gross weight information is required for the merchandise
covered by each reporting number, but if gross weight is not available
for each reporting number included in one or more packages, approximate
shipping weight for each item shall be estimated and reported. The
total of these estimated weights should equal the actual gross shipping
weight of the entire package or packages. However, for containerized
cargo carried in lift vans, cargo vans, or similar substantial outer
containers, the weight of such containers should not be included in the
gross shipping weight of the merchandise covered by each reporting
number.
(i) Net quantity. (All forms except 7535.) When a unit of quantity
is specified in TSUSA for the reporting number under which the item is
reported, net quantity shall be reported in the specified unit, and
(except where the unit is ''No.'' (number)) the unit in which reported
shall also be shown on the entry following the net quantity figure. In
cases where two units of quantity are shown for the commodity in TSUSA,
net quantity shall be reported on the import entry in each of the
specified units with the unit indicated in each case. The quantity in
terms of the unit marked with a superior ''v'' in TSUSA should be shown
on the entry on the same horizontal line with the value. The quantity
in terms of any other units specified in TSUSA should be shown below the
first quantity and should be enclosed in parentheses. If no unit of
quantity is specified in TSUSA for the reporting number under which the
item is reported, net quantity is not required to be reported on the
import entry, and an ''X'' shall be entered in the ''net quantity''
column. Where the unit of quantity specified in TSUSA is ''tons,'' long
tons of 2,240 pounds shall be reported unless short tons of 2,000 pounds
are specified in TSUSA. Quantities shall be shown in whole units unless
fractions of units are required for Customs purposes.
(j) Value. (All forms.) Except on Customs Form 7512 when used as an
Immediate Exportation or Transportation and Exportation entry, the
dollar value shall be reported on the forms in accordance with the
definitions set forth in the Tariff Schedules of the United States
Annotated (TSUSA) and sections 402 and 402a of the Tariff Act of 1930,
as amended. Moreover, the value shall be reported in accordance with
the format prescribed in the U.S. Customs Regulations. (On Customs Form
7512 when used as an Immediate Exportation entry, only the Customs value
in accordance with sections 402 and 402a of the Tariff Act of 1930, as
amended, need be reported.)
(k) TSUSA reporting number. (All forms.) Except on Customs Form 7512
when used as an in-transit entry, the reporting number according to the
current edition of the Tariff Schedules of the United States Annotated
shall be shown in the column provided on the form. The reporting number
assigned shall reflect the correct TSUSA classification of the
merchandise and be consistent with the rate of duty applicable to the
commodity. Where correct reporting as indicated in TSUSA requires the
use of more than one TSUSA commodity number, all required reporting
numbers will be shown for an item on the Customs form. On Customs Form
7512 when used as an Immediate Exportation or Transportation and
Exportation entry, the reporting number, in terms of the first five
digits of TSUSA (TSUS), is required to be shown in the column provided
on the form for ''Description and Quantity of Merchandise.'' This code
should appear to the right of that column, on the same line as the
reported gross weight and value.
(41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59839, Nov. 22, 1977;
47 FR 29829, July 9, 1982)
0109The information required for statistical purposes is in most
cases also required by Customs regulations for other purposes. (See
30.80 for special reporting instructions for merchandise entering United
States Customs Territory from United States Foreign Trade Zones.)
15 CFR 30.70 Subpart F -- Special Provisions for Particular Types of
Import Transactions
30.80 (Reserved)
15 CFR 30.81 Imports of merchandise into Guam.
(a) Carriers of merchandise to Guam shall not be permitted to unload
cargo in Guam until the master or other person in charge of the carrier
shall deliver to the Government of Guam at the place of unloading a
manifest, cargo list, freight list or equivalent document showing a
detailed account of merchandise destined for Guam on board such carrier,
with the numbers and description of the packages according to their
usual name or designation.
(b) For each shipment imported into Guam except as listed in
paragraph (d) of this section, the importer in Guam shall furnish to the
Government of Guam at the port of entry of the merchandise at the time
of or prior to taking possession of such merchandise, the commercial
invoice covering the shipment attached to a copy of the bill of lading
or air waybill signed by the carrier. (Where the shipment is one for
which no bill of lading (or air waybill) is utilized only a copy of the
commercial invoice need be furnished.) In individual cases, where
warranted in the opinion of the Government of Guam, the Government of
Guam may release merchandise to the consignee prior to receipt of the
commercial invoice and/or bill of lading or air waybill in the case of
perishable articles or other merchandise, the immediate delivery of
which is necessary.
(c) Information concerning individual transactions furnished to the
Government of Guam pursuant to these regulations may not be disclosed by
those having possession of or access to any copies of such information
for official purposes, to anyone other than the exporter or importer
except as specifically directed by the Bureau of the Census.
(d) The following kinds of shipments are not to be included in the
statistics on shipments from the United States to Guam and the
documentation prescribed in paragraphs (a) and (b) of this section shall
not be required for statistical purposes:
(1) Shipments to the U.S. Armed Forces;
(2) Shipments of office furniture, office equipment, and office
supplies, to and for the exclusive use of U.S. Government offices;
(3) Baggage and personal effects, accompanied or unaccompanied, of
persons leaving the U.S., and tools of trade, as described in 30.56(a)
and (b).
15 CFR 30.82 Identification of U.S. merchandise returned for repair and
reexport.
Import entries covering U.S. merchandise imported temporarily for
repair or alteration and reexport are required to show the following
statement: ''Imported for Repair and Reexport.''
15 CFR 30.83 Statistical copy of mail and informal entries.
A legible copy of all mail and informal entries is required for
statistical purposes. In addition to the information required to be
shown for customs purposes, the value is also required to be shown for
all merchandise including that not subject to duty.
15 CFR 30.83 Subpart G -- General Administrative Provisions
15 CFR 30.90 Confidential information, import entries and withdrawals.
The contents of the statistical copies of import entries and
withdrawals on file with the Bureau of the Census are treated as
confidential and will not be released without authorization by the U.S.
Customs Service, in accordance with the policy set forth in 19 CFR 103.4
(Customs Regulations) relating to the copies on file in Customs offices.
15 CFR 30.91 Confidential information, Shipper's Export Declarations.
(a) Confidential status. The Shipper's Export Declaration is an
official Department of Commerce form, prescribed jointly by the Bureau
of the Census and the International Trade Administration. Information
supplied thereon is confidential, for use solely for official purposes
authorized by the Secretary of Commerce. Use for unauthorized purposes
is not permitted. Information on Shipper's Export Declarations may not
be disclosed to anyone except the exporter or his agent by those having
possession of or access to any copy for official purposes, except as
provided in paragraph (e) of this section.
(b) Copying of information to manifests not permitted. Since certain
types of information from the outward manifests of ocean carriers can be
made public under the provisions of the Customs Regulations, carriers
are not permitted to copy information to manifests (or to bills of
lading used in lieu of a listing of cargo on a manifest) from Shipper's
Export Declarations in their possession for official purposes, except
for (1) the bill of lading number on the declaration, (2) information on
the declaration which is identical with bills of lading or other sources
of information available to the carrier, and (3) items of information
which are required by Export Administration Regulations to be identical
or consistent on both documents.
(c) Supplying of copies by exporters for unofficial purposes not
permitted. The regulations in this part spell out precise definitions
to be followed in reporting information on Shipper's Export
Declarations. Strict adherence to these definitions is necessary if the
official purposes for which the forms are required are to be effectively
accomplished. Because of the possibility that for other purposes
different definitions would be appropriate, the supplying by exporters
of any copies (or of the information from copies) for any unofficial
purpose is considered detrimental to official objectives and is not
permitted.
(d) Limitations on issuance and reproduction of copies. Consistent
with the policy stated in paragraph (c) of this section, and with the
confidential status of the document generally, the following limitations
are placed upon the issuance of copies to exporters or their agents:
(1) A copy of a Shipper's Export Declaration may be supplied to
exporters or their agents only when such a copy is needed by the
exporter to comply with: (i) Official requirements for presentation of
a copy to the exporting carrier as authorization for export, (ii) export
control requirements, or (iii) U.S. Department of Agriculture
requirements for proof of export in connection with subsidy payments.
Copies issued to exporters or their agents under paragraph (d)(1) (ii)
or (iii) of this section will be stamped as follows by the Customs
Director:
Certified pursuant to the Export Administration Regulations or to
fulfill the requirements of a Federal Agency and not for any other
purpose. May not be reproduced in any form.
(2) Use of copies of the Shipper's Export Declaration in connection
with claims for exemption from internal revenue taxes or state taxes is
not permitted.
(e) Determination by the Secretary of Commerce. When the Secretary
of Commerce or delegate determines that the withholding of information
provided by an individual Shipper's Export Declaration is contrary to
the national interest, the Secretary or delegate may make such
information available, taking such safeguards and precautions to limit
dissemination as deemed appropriate under the circumstances. In
recommendations regarding such actions, the Bureau of the Census will,
in general, consider that it is not contrary to the national interest to
withhold information on Shipper's Export Declarations from private
individuals or businesses (except the exporter or the agent of the
exporter) or from state or local government agencies or officials,
regardless of the purposes for which the information may be requested.
In recommendations regarding any other requests for access to official
copies, a judgment in the light of circumstances will be made as to
whether it is contrary to the national interest to apply the exemption,
keeping in view that the maintenance of confidentiality has in itself an
important element of national interest.
(13 U.S.C.302; and 5 U.S.C. 301; Reorg. Plan No. 5 of 1950,
Department of Commerce Organization Order No. 35-2A, August 4, 1975, 40
FR 42765)
(41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7213, Feb. 18, 1982;
48 FR 52701, Nov. 22, 1983)
15 CFR 30.92 Statistical classification schedules.
The following statistical classification schedules referred to in the
regulations in this part are hereby incorporated by reference.
Information as to where copies may be obtained is indicated. Copies are
available for public inspection at the offices of local Customs
Directors and Department of Commerce District Offices.
TSUSA -- Tariff Schedules of the United States Annotated for
Statistical Reporting, as currently revised, shows the 7-digit
statistical reporting number to be used in preparing import entries and
withdrawal forms. TSUSA may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402,
local Customs Directors, or Department of Commerce District Offices
located in principal cities. Purchase price includes the basic schedule
plus revisions as currently issued for an indefinite period.
Schedule B -- Statistical Classification of Domestic and Foreign
Commodities Exported from the United States, as currently revised, shows
the detailed commodity classification requirements and 7-digit
statistical reporting numbers to be used in preparing Shipper's Export
Declarations, as required by these regulations. Schedule B may be
purchased from the Superintendent of Documents, U.S. Government Printing
Office, Washington, D.C. 20402, local Customs Directors, or Department
of Commerce District Offices located in principal cities. Purchase
price includes the basic schedules and supplements issued irregularly,
covering revision in the schedule for an indefinite period.
Schedule C-E -- Classification of Country and Territory Designations
for U.S. Export Statistics. Free from the Bureau of the Census,
Washington, D.C. 20233.
Schedule C-I -- Classification of Country and Territory Designations
for U.S. Import Statistics. Free from the Bureau of the Census,
Washington, D.C. 20233.
Schedule D -- Classification of Customs Districts and Ports. Free
from the Bureau of the Census, Washington, D.C. 20233.
(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950;
Department of Commerce Organization Order No. 35-2A, Aug. 4, 1975, 40 FR
42765)
(41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59840, Nov. 22, 1977;
43 FR 56031, Nov. 30, 1978; 44 FR 1971, Jan. 9, 1979)
15 CFR 30.93 Emergency exceptions.
In individual cases of emergency, where strict enforcement of the
regulations in this part would create undue hardship, the Foreign Trade
Division of the Bureau of the Census, with the concurrence of the Office
of Export Administration in cases where export control requirements are
also involved, may authorize such postponements of or exceptions to the
requirements of the regulation in this part as are warranted by the
circumstances and not inconsistent with the aims of this chapter.
15 CFR 30.94 Instructions to Customs.
Instructions of a continuing nature to Customs with respect to the
forwarding of statistical copies of forms and the preparation of special
statistical reports not involving requirements upon the public will not
be included in the regulations in this part, but will, instead be
transmitted to Customs through appropriate administrative channels.
15 CFR 30.95 Penalties for violations.
Any person who violates any provisions of this part, except for
violations of the provisions relating to delayed filing of documents
under bond as provided by 30.24, shall be liable to the United States
in civil penalty not exceeding $1,000 for each violation, as authorized
by section 305 of Chapter 9 of Title 13 of the United States Code.
15 CFR 30.99 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
(a) Purpose. This subpart will comply with the requirements of
section 3507(f) of the Paperwork Reduction Act (PRA) which requires that
agencies display a current control number assigned by the Director of
OMB for each agency information collection requirement.
(b) Display.
(48 FR 56744, Dec. 23, 1983)
15 CFR 30.99 PART 40 -- TRAINING OF FOREIGN PARTICIPANTS IN CENSUS
PROCEDURES AND GENERAL STATISTICS
Sec.
40.1 Type of grant.
40.2 Qualifications.
40.3 Cooperation with bilateral technical assistance programs of the
United States.
40.4 Administrative provisions on selection of participants and
funding of costs.
40.5 Other cooperative arrangements.
Authority: 5 U.S.C. 301; 22 U.S.C. 1456; 31 U.S.C. 686.
Memorandum of Agreement between the Department of Commerce and the
Foreign Operations Administration Concerning Foreign Technical
Assistance Work, signed June 10, 1954.
Source: 28 FR 119, Jan. 4, 1963, unless otherwise noted.
15 CFR 40.1 Type of grant.
Training grants will be awarded by the Agency for International
Development (AID), in its capacity as the bilateral technical assistance
agency for the United States Government, to foreign participants for
training, observation, and research in the fields of censuses and
statistics at the Bureau of the Census. In compliance with the needs of
the participants and consistent with resources of the Bureau, training
programs will be developed along the lines of a combined
interne-training and/or training-in research types, and may include any
or all of the following:
(a) Conference courses designed to provide the trainee with adequate
background information on (1) organization and administration of the
United States Bureau of the Census, (2) subject-matter areas for which
the Bureau of the Census collects and compiles statistical information,
(3) nature and scope of the major statistical programs maintained by
other federal government agencies, (4) techniques and scope of the
periodic censuses and statistical surveys, and statistical compilations
undertaken by the Bureau of the Census, and (5) relation of censuses to
other statistical data collected and analyzed by U.S. agencies.
(b) Seminars laboratory exercises and observation of work in the
Census Bureau and other agencies with specific applicability to the
participant such as (1) development of census and survey questionnaires,
(2) methods of field and mail enumeration, (3) procedures for editing
and coding statistical forms, (4) use of office machines,
electromechanical tabulation equipment, and automatic data processing
systems for mass processing of statistical data, (5) definitions and
scope of the subject matters involved in the censuses and statistical
programs of the Bureau of the Census, (6) classification of industrial
and business establishments, (7) classification of imports and exports,
(8) techniques of making intercensal estimates of population, (9)
sampling techniques and quality control procedures, (10) analyses and
publication of data, and development of certain indexes; and (11) other
topics, particularly in the development of new statistical programs and
techniques.
(c) Formal courses at a college or university to supplement the
seminars, conference-courses, and individual statistical projects
developed, presented, or assigned by the Bureau; or enrolled on a
full-time basis in a college or university to obtain the appropriate
academic background for further work in the field of statistics in
accordance with needs of participants and/or the program requirements of
their countries.
(d) Observation trips to various academic institutions with
recognized statistical activities, to private marketing and research
agencies, to regional field offices of the Bureau, to the government
statistical agencies of Canada, and to such activities that will
supplement or illustrate the application and end use of statistical
data.
(e) Case study workshops on selected census and statistical
activities presented at the Bureau, in other locations in the United
States, or outside the continental limits of the United States.
(f) Such field training, special research, or university program as
appears advisable to the Director of the Bureau of the Census in
accordance with the technical needs of the participants.
15 CFR 40.2 Qualifications.
(a) To be eligible for a training grant at the Bureau of the Census
the applicant must be:
(1) A bona-fide citizen of a country with whom the United States has
proper diplomatic arrangements for such training programs.
(2) Able to speak, read, write, and understand the English language.
(3) Sponsored by his government either directly with the United
States or through a public international agency.
(4) Physically able to undertake the activities incident to the
course of training and free from communicable diseases.
15 CFR 40.3 Cooperation with bilateral technical assistance programs of
the United States.
In compliance with the provisions contained in the Memorandum of
Agreement executed between the Department of Commerce and the Foreign
Operations Administration (now AID) on June 10, 1954, the Bureau of the
Census is authorized within its areas of competence and available
resources to continue its training of foreign nationals under the
general guidance of the Department of Commerce and in cooperation with
the bilateral technical assistance programs of the United States
Government.
15 CFR 40.4 Administrative provisions on selection of participants and
funding of costs.
(a) Within the framework of the aforementioned Memorandum of
Agreement, the Bureau of the Census will arrange at the request and
expense of the Agency for International Development, a program for
technical training of foreign participants in censuses and statistics.
The Bureau of the Census will be furnished biographic materials,
information about the training objecttives including, where appropriate,
each participant's education and experience, type of training desired,
present and future positions with descriptions of duties, and the terms
of the training project for each participant or group as far in advance
of his arrival in the United States as possible.
(b) The Bureau reserves the right to accept, based on biographical
information to be furnished in advance, only those participants whom it
finds qualified to make satisfactory use of its training facilities and
resources. The Bureau would prefer to develop programs for foreign
participants with substantive experience in the statistical activities
of their home country.
(c) Arrangements for security clearances, insurance, orientation,
international travel, housing, and other administrative responsibilities
will be the responsibility of AID under the provisions of the Memorandum
of Agreement (Reference: Appendix II, Training of Foreign Nationals).
15 CFR 40.5 Other cooperative arrangements.
The Bureau of the Census also undertakes the training of foreign
nationals proposed through the Department of State under the
International Exchange Service (IES) or under the sponsorship of public
international agencies.
15 CFR 40.5 PART 50 -- SPECIAL SERVICES AND STUDIES BY THE BUREAU OF
THE CENSUS
Sec.
50.1 General.
50.5 Fee structure for age search and citizenship information.
50.10 Fee structure for special population censuses.
50.30 Fee structure for foreign trade and shipping statistics.
50.40 Fee structure for statistics for city blocks in the 1980
Censuses of Population and Housing.
Authority: Sec. 3, 49 Stat. 293, as amended; 15 U.S.C. 192a.
Interprets or applies sec. 1, 40 Stat. 1256, as amended, sec. 1, 49
Stat. 292, sec. 8, 60 Stat. 1013, as amended, 15 U.S.C. 192, 189a, 13
U.S.C. 8.
15 CFR 50.1 General.
(a) Fee structure for age search and citizenship service, special
population censuses, and for foreign trade and shipping statistics.
(b) In accordance with the provisions of the acts authorizing the
Department of Commerce to make special statistical surveys and studies,
and to perform other specified services upon the payment of the cost
thereof, the following fee structure is hereby established. No
transcript of any record will be furnished under authority of these acts
which would violate existing or future acts requiring that information
furnished be held confidential.
(c) Requests for age search and citizenship service should be
addressed to the Personal Census Search Unit, Data Preparation Division,
Bureau of the Census, P.O. Box 1545, Jeffersonville, Indiana 47131.
Application forms may be obtained at Department of Commerce field
offices or Social Security offices or by writing to the Jeffersonville,
Indiana office.
(d) If a search is unsuccessful and additional information for a
further search is requested by the Bureau, such information must be
received within 120 days of the request or the case will be considered
closed. Additional information received after 120 days must be
accompanied by a new fee and will be considered as a new request.
(15 U.S.C. 1526 and 13 U.S.C. 8)
(36 FR 905, Jan. 20, 1971, as amended at 49 FR 3980, Feb. 1, 1984;
56 FR 35815, Jul. 29, 1991)
15 CFR 50.5 Fee structure for age search and citizenship information.
(54 FR 29011, July 11, 1989)
15 CFR 50.10 Fee structure for special population censuses.
The Bureau of the Census is authorized to conduct special population
censuses at the request of and at the expense of the community
concerned. To obtain a special population census, an authorized
official of the community should write a letter to the Associate
Director for Demographic Fields, Bureau of the Census, Washington, D.C.
20233, requesting detailed information and stating the approximate
present population. The Associate Director will reply giving an
estimate of the cost and other pertinent information. Title 13, United
State Code, section 196, Special Censuses, requires payment to the
Bureau of the actual or estimated cost of each such special census.
(47 FR 18, Jan. 4, 1982)
15 CFR 50.30 Fee structure for foreign trade and shipping statistics.
(a) The Bureau of the Census is willing to furnish on a cost basis
foreign trade and shipping statistics provided there is no serious
interruption of the Bureau's regular work program.
(b) In instances where information requested is not shown separately
or not summarized in the form desired, it is necessary to conduct a
prelimary investigation at the requestor's expense to determine whether
the information can be compiled from the basic records and what the
total cost will be. The preliminary investigation normally costs $250
but may be more depending on the circumstances. The total cost of the
final report generally ranges from $500 to several thousand dollars for
data covering a 12-month period.
(c) Upon receipt of a request, information will be furnished as to
whether the statistics are available and if so, the cost; or that a
preliminary investigation must be conducted. When an investigation is
completed, information will be furnished as to the cost of preparing the
material, or as to the reason if the statistics cannot be compiled from
our basic records.
(15 U.S.C. 1526 and 13 U.S.C. 8)
(28 FR 120, Jan. 4, 1963, as amended at 49 FR 3980, Feb. 1, 1984)
15 CFR 50.40 Fee structure for statistics for city blocks in the 1980
Census of Population and Housing.
(a) As part of the regular program of the 1980 census, the Census
Bureau will publish printed reports containing certain summary
population and housing statistics for each city block, drawn from the
subjects which are being covered on a 100-percent basis. For these
subjects, a substantial amount of additional data by block will be
available on computer tape.
(b) The 1980 block data under the regular program will be prepared
for:
(1) Each urbanized area in the United States. An urbanized area is
delineated by the Census Bureau in each standard metropolitan
statistical area and generally consists of a city or group of contiguous
cities with a 1970 population of 50,000 or more, together with adjacent
densely populated land (i.e., land having a population density of at
least 1,000 persons per square mile).
(2) And, outside urbanized areas, for each incorporated place (such
as a city or village) that was reported as having 10,000 or more
inhabitants in:
(i) The 1970 census, or
(ii) The 1973, 1975, or 1976 official population estimates published
by the Bureau, or
(iii) A special census conducted by the Bureau on or before December
31, 1977.
(c) Outside the above-mentioned urbanized areas and places, State and
local government authorities will be able to contract with the Bureau of
the Census to produce block data for their areas. In undertaking this
contract, the requesting authority will be required to pay a fee, supply
certain maps, and meet certain time deadlines as follows:
(1) Fee: (i) Population size:
(ii) The final fee will be based upon the 1980 census population
counts. A refund or additional charge will be made if the contracting
area is in a different population size group as a result of the census.
(iii) The cost for an area with a population of 10,000 or more will
be determined on an individual basis.
(iv) Multiple area contracts may be negotiated at a savings.
(v) The fee is based on estimated 1980 costs. If the 1980 cost
exceeds the estimated cost, an additional fee may be requested from the
contracting area. If actual costs are less than the estimated cost, a
refund may be made.
(vi) Any incorporated place which contracts for block statistics and
which reaches a population of 10,000 or more in the 1980 census will
have the fee completely refunded, as the place will then be considered
to be part of the regular block statistics program.
(vii) If the area submits maps which are not adequate for the
Bureau's purposes (see Maps, below) and therefore have to be redrafted
by the Bureau, a surcharge of $300 per map sheet requiring revision will
be applied to the fee for the particular area.
(2) Maps: (i) In order for the Bureau to provide data on a
block-by-block basis, it must have a map which clearly delineates each
block. The contracting government authority must supply such maps. A
copy of the specifications for preparing the block maps will be provided
upon request and, in any event, will accompany the copy of the contract
which is sent to the government authority for signature.
(ii) The maps must be furnished to the Census Bureau within 30
calendar days after the government authority signs the contract.
(iii) The Bureau will review the maps and, if revision is necessary,
return them within 30 calendar days to the government authority.
(iv) Within 30 calendar days thereafter, the revised maps must be
transmitted to the Bureau and, if they are still inadequate and must
therefore be redrafted by the Bureau, the above-mentioned surcharge of
$300 per map sheet requiring revision will be imposed.
(3) Timing: (i) The contract must be signed, and a downpayment of
$250 per area made, by April 1, 1978. A check or money order should be
made payable to ^^Commerce -- Census.''
(ii) If an area decides to withdraw after signing a contract and
making a downpayment, the cost of work performed to date will be
deducted from the refund.
(iii) The balance of the fee must be mailed to the Bureau by January
1, 1980.
(d) In consideration of the fees paid and maps supplied, the Bureau
will:
(1) Identify the individual blocks in its records and tabulations.
(2) Make available the block data for the particular area in the same
manner as for areas in the regular block statistics program (i.e., both
in terms of printed reports and computer summary tapes). Two copies of
the printed report (including the printed maps) which contain the block
statistics for the particular area will be furnished to the contracting
government authority.
(e) Requests for participation in the contract block statistics
program or for further information should be addressed to the Director,
Bureau of the Census, Washington, DC 20233.
(43 FR 3903, Jan. 30, 1978; 43 FR 59835, Dec. 22, 1978)
15 CFR 50.40 PART 60 -- PUBLIC INFORMATION
Sec.
60.1 Scope and purpose.
60.2 Policies.
60.3 Definitions.
60.4 Publication in the Federal Register.
60.5 Availability of materials for inspection and copying.
60.6 Confidentiality of data collected by the Bureau of the Census.
60.7 Requests for records.
60.8 Initial determinations of availability of records.
60.9 Appeals from initial denials or untimely delays.
60.10 Fees.
60.11 Arrangements for public inspection and copying of available
records.
Authority: 5 U.S.C. 552, as amended by Pub. L. 93-502; 5 U.S.C.
553; 5 U.S.C. 301; 40 FR 11551; 40 FR 19810.
Source: 41 FR 3466, Jan. 23, 1976, unless otherwise noted.
15 CFR 60.1 Scope and purpose.
(a) This part revises the rules whereby the Bureau of the Census is
to make publicly available the materials and indexes specified in 5
U.S.C. 552(a)(2), and the records requested under 5 U.S.C. 552(a)(3).
This revision is to conform the rules to the requirements of the Freedom
of Information Act (5 U.S.C. 552), as amended by Pub. L. 93-502, 88
Stat. 1561, effective February 19, 1975.
(b) These rules supplement Department Administrative Order 205-12,
which contains policies, delegations of authority, and other rules
implementing 5 U.S.C. 502. These rules also supplement the rules
published on March 12, 1975, by the Department of Commerce (40 FR
11551).
15 CFR 60.2 Policies.
(a) Policies and other factors to be considered in issuing the rules
in this part are set forth in Department Administrative Order 205-12.
(b) Requests for records made under 5 U.S.C. 552(a)(3) apply only to
existing records, and the Bureau is not required, in response to a
request, to create records by combining or compiling information
contained in existing records, or otherwise to prepare new records.
However, Bureau officials may, upon request, provide or create new
information in record form pursuant to user charge statutes, such as 15
U.S.C. 1525-1527, or in accord with authority otherwise provided by law.
15 CFR 60.3 Definitions.
(a) To the extent that terms used in this part are defined in 5
U.S.C. 551, they shall have the same definition herein.
(b) As used in this part, Act means the ''Freedom of Information
Act,'' as amended, 5 U.S.C. 552.
15 CFR 60.4 Publication in the Federal Register.
(a) Materials required to be published pursuant to the provisions of
5 U.S.C. 552(a)(1) have been and shall continue to be so published, in
one of the following ways:
(1) By publication in the Federal Register of the Department Orders
of the Department of Commerce, including any supplements and appendices
thereto, and of appropriate Secretary of Commerce Circulars and
Department Administrative Orders;
(2) By publication in the Federal Register of agency rules and
regulations, and by their subsequent inclusion in the Code of Federal
Regulations;
(3) By publication in the Federal Register of appropriate general
notices; and
(4) By other forms of publication, when incorporated by reference in
the Federal Register with the approval of the Director of the Federal
Register.
(b) Those materials which are published in the Federal Register
pursuant to 5 U.S.C. 552(a)(1) shall, to the extent practicable and to
further assist the public, be made available for inspection and copying
at the facility identified in 60.5(c).
15 CFR 60.5 Availability of materials for inspection and copying.
(a) The Director, Bureau of the Census shall, as provided in 5 U.S.C.
552(a)(2) and subject to other provisions of law, establish and maintain
a reference facility for the public inspection and copying of:
(1) Final opinions, including concurring and dissenting opinions, as
well as order, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the Bureau and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Current indexes providing identifying information for the public
as to any matter which is (i) issued, adopted, or promulgated after July
4, 1967, and (ii) required to be made available or published by section
552(a)(2);
(5) Records of the final votes of each member in every proceeding of
any agency comprised of more than one member;
(6) Rules and decisions denying requests for records which otherwise
implement or relate to the Act; and
(7) Materials published in the Federal Register pursuant to 5 U.S.C.
552(a)(1) and such other materials which each unit may consider
desirable and practical to make available for the convenience of the
public.
(b) The Bureau may, to prevent unwarranted invasion of personal
privacy, delete identifying details when it makes available or publishes
an opinion, statement of policy, interpretation, or staff manual or
instruction, and shall, in each such case, explain in writing the
justification for the deletion.
(c) The Secretary of Commerce has determined (DAO 205-12,
subparagraph 5.02a.5.) that it is unnecessary and impracticable to
publish quarterly or more frequently and distribute (by sale or
otherwise) copies of each index and supplements thereto, as provided in
5 U.S.C. 552(a)(2). Upon request, copies of such indexes shall be
provided at the public reference facility at a cost not to exceed the
direct cost of duplication.
(d) The above materials may be inspected in the Census Freedom of
Information Records Inspection Facility located at the Library Branch,
Room 2455, Federal Building 3, Bureau of the Census, Washington, D.C.
20233 (Suitland, Maryland). This facility is open to the public Monday
through Friday of each week, except on official Federal holidays,
between the hours of 9:00 a.m. and 4:30 p.m. There are no fees or formal
requirements for such inspections. Upon request, however, the facility
will arrange to have copies of the above materials made at the cost
shown in 60.10.
(e) Correspondence concerning the materials available in the facility
should be sent to the above address. The telephone number of the
facility is 763-5040, Area Code 301.
15 CFR 60.6 Confidentiality of data collected by the Bureau of the
Census.
(a) The Bureau of the Census is required by law to keep certain
records confidential. Protection against unauthorized disclosures is
provided by title 13, U.S.C.
15 CFR 60.7 Requests for records.
(a) The procedures of this section are applicable only to those
records not customarily available to the public as part of the regular
informational activities of the Bureau or which are not available in the
Census reference facility described in 60.5. The procedures and fees
generally do not apply to applications for personal census information.
Applications for personal census information should be directed to the
Bureau's Personal Census Service Branch at Walnut and Pine Streets,
Pittsburg, Kansas 66762.
(b) A person who wishes to inspect records described in section
607(a) shall make a request in writing, with the envelope and letter
clearly marked ''Freedom of Information Desk'' or ''Freedom of
Information Request'' or the equivalent, to distinguish it from other
mail to the Department. Each such request, so marked, shall be
addressed to Associate Director for Administration, Bureau of the
Census, Attention: Freedom of Information Desk, Washington, D.C.
20233.
(c) A request which is not addressed as described in 60.7(a) and
which is not routed through the Department's Central Facility, will not
be deemed to have ''received'' for purposes of the time period for a
request for records set forth in 5 U.S.C. 552(a)(6), until the earlier
of the time that (1) forwarding of the request to the responsible unit
has been effected, or (2) such forwarding would have been effected with
the exercise of due diligence by Bureau personnel. In each instance
when a request is forwarded, the Bureau of the Census shall notify the
requester that his request was improperly addressed and the date the
request was received by Census.
(d) A request for records shall sufficiently identify the records
requested to enable Census personnel familiar with the subject matter to
locate them with a reasonable amount of effort. The requester shall, to
the extent possible, furnish specific descriptive information regarding
dates and places the records were made, the file descriptions, subject
matter, persons involved, and other pertinent details that will help
identify the records. If the request relates to a matter in pending
litigation, the court, location and case shall be identified. When more
than one record is requested, the request shall clearly describe each
specific record, and the specific information requested which is
contained in a record, so that its availability may be separately
determined. Employees at the Census reference facility described in
60.5 will assist the public to a reasonable extent in framing a request.
15 CFR 60.8 Initial determinations of availability of records.
(a) Whenever the Bureau of the Census receives a request for records
it shall promptly log the receipt of the request, and within 10 days of
its receipt (excepting Saturdays, Sundays and legal public holidays)
shall initially determine:
(1) Whether the request is for records under the Act, is for
materials available otherwise than under the Act, or is for information
not contained in existing records, and, therefore, not under the Act.
(2) Whether the records requested are reasonably described and can be
located on the basis of the information furnished, the Bureau shall
promptly so inform the requestor in writing, specifying what additional
identification is needed to assist the Bureau in locating the record,
and offering to assist the requestor to reformulate his request.
(3) Whether the records no longer exist or are not in the Bureau's
possession. The Bureau shall, if it knows which unit of the Department
or other agency may have the records, forward the request to it. In
each instance, the Bureau shall promptly notify the requestor in
writing.
(4) Whether the requested records are the exclusive or primary
concern of another executive agency. If so, the Bureau shall promptly
refer to request to that other agency for further action under its
rules, and promptly notify the requestor in writing of this referral.
(5) Whether the request is a categorical one. A categorical request;
i.e., one for all records falling within a reasonably specific but
broad category, shall be regarded as conforming to the statutory
requirement that records be reasonably described, if the particular
records can be identified, searched for, collected and produced without
unduly burdening or disrupting the Bureau's operations. If the
categorical request does not reasonably describe the records requested,
the Bureau shall promptly notify the requester in writing specifying
what additional identification is needed, and extend to the requester an
opportunity to confer with Bureau personnel to attempt to reformulate
the request so as reasonably to describe the records.
(6) In each of the situations set forth in paragraphs (a) and (b) of
this section, the procedures relating to fees described in 60.10 shall
also be applied and coordinated as appropriate.
(b) An official having custody of the records requested in the Bureau
of the Census shall review the request to determine the availability of
the records requested.
(1) The determination shall be made within 10 days (excepting
Saturdays, Sundays and legal public holidays) of the receipt of the
request (as defined in 60.7(c)), unless the time is extended as
provided in paragraph (b)(2) of this section.
(2) In unusual circumstances, the Associate Director for
Administration may extend the time for initial determination for up to
10 days (excluding Saturdays, Sundays and legal public holidays) by
written notice to the requester setting forth the reasons for the
extension and the date on which a determination is expected to be
dispatched. Extensions of time for the initial determination and
extensions of time on appeal may not exceed a total of 10 days, and time
taken for the former counts against available appeal extension time,
''Unusual circumstances'' means, but only to the extent reasonably
necessary to the processing of a particular request:
(i) 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;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) The need for consultation, which shall be conducted with all
practical speed, with another agency or unit having a substantial
interest in the determination of the request, or among two or more
components of the Bureau having substantial subject-matter interest
therein.
(3) If no determination has been sent to the requester at the end of
the initial 10-day period, or the last extension thereof, the requester
may deem his request to be initially denied, and exercise a right of
appeal therefrom. When no determination can be made within the
applicable time period, the Bureau shall nevertheless exercise due
diligence in continuing to process the request. It shall, on expiration
of the applicable time period, inform the requester of the reason for
the delay, of the date a determination is expected to be sent, and of
the requester's right to treat the delay as a denial and to appeal
therefrom. It may ask the requester to forego an appeal until a
determination is made.
(4) If it is determined that the records requested are to be made
available, and there are no further fees to be paid, the responsible
official shall promptly notify the requester as to where and when the
requested records or copies may be obtained or otherwise provide them as
agreed. If there are fees still to be paid by the requester, he shall
be notified that upon payment the records will immediately be made
available.
(5) Only the Associate Director for Administration has been
authorized to make initial denials of requests for records. A reply
initially denying, in whole or in part, a request for records shall be
in writing, signed by the Associate Director for Administration and it
shall include:
(i) A reference to the specific exemption or exemptions of the Act
authorizing the withholding of the records, stating briefly why the
exemption applies and, where relevant, why a discretionary release is
not appropriate.
(ii) The name and title or position of each official responsible for
the denial.
(iii) A statement of the manner in which any reasonably segregable
portion of a record shall be provided to the requester after deletion of
the portions which are determined to be exempt.
(iv) A brief statement to the right of the requester to appeal the
determination, and the address to which the appeal should be sent, in
accord with 60.9(a) and (b).
(6) The Office of the General Counsel of the Department shall be
consulted before an initial denial of a request for records is issued
and a copy of each initial denial shall be provided to the Assistant
General Counsel for Administration of the Department of Commerce.
15 CFR 60.9 Appeals from initial denials or untimely delays.
(a) When a request for records has been initially denied in whole or
in part, or has not been timely determined, the requester may submit a
written appeal within 30-calendar days after the date of the written
denial or, if there has been no determination, on the last day of the
applicable time limit. The appeal shall include a copy of the original
requests, the initial denial, if any, and a statement of the reasons why
the records requested should be made available and why the initial
denial, if any, was in error. No personal appearance, oral argument or
hearing on appeal is provided.
(b) An appeal shall be addressed to the Director, Bureau of the
Census, Washington, D.C. 20233. Both the appeal envelope and the letter
shall be clearly marked ''Freedom of Information Appeal'' or ''Appeal
for Records'' or the equivalent. An appeal not addressed and marked as
provided herein will be so marked by the Bureau personnel when it is so
identified, and will be forwarded immediately to the proper addressee.
An appeal incorrectly addressed will not be deemed to have been
''received'' for poses of the time period for appeal set forth in 5
U.S.C. 552(a)(6), until the earlier of the time that (1) forwarding to
the Director has been effected, or (2) such forwarding would have been
effected with the exercise of due diligence by Bureau personnel. In
each instance when an appeal is so forwarded, the Director shall notify
the requester that the appeal was improperly addressed and of the date
the appeal was received by that official.
(c) The Director, Bureau of the Census, shall act upon an appeal
within 20 days (excluding Saturdays, Sundays and legal public holidays)
of its receipt, unless an extension of time is made in unusual
circumstances, when the time for action may be extended up to 10 days
(excluding Saturdays, Sundays and legal public holidays) minus any days
of extension granted at the initial request level. A notice of such
extension shall be sent to the requester, setting forth the reasons and
the date on which a determination of the appeal is expected to be sent.
As used in this paragraph, ''unusual circumstances'' are defined in
60.8(b)(2).
(d) If a decision on appeal is to make the records available to the
requester in part or in whole such records shall be promptly made
available for inspection and copying as provided in 60.5.
(e) If no determination of an appeal has been sent to the requester
within the 20-day period or the last extension thereof, the requester is
deemed to have exhausted his administrative remedies with respect to
such request, giving rise to a right of judicial review as specified in
5 U.S.C. 552(e)(4). When no determination can be sent to the requester
within the applicable time limit, the Director shall nonetheless
exercise due diligence in continuing to process the appeal. When the
time limit expires, the requester shall be informed of the reason for
the delay, of the date when a determination may be expected to be made,
and his right to seek judicial review. The requester may be asked to
forego judicial review until the appeal is determined.
(f) A determination on appeal shall be in writing and, when it denies
records in whole or in part, the notice to the requester shall include:
(1) Notation of the specific exemption or exemptions of the Act
authorizing the withholding, a brief explanation of how the exemption
applies, and, when relevant, a statement as to why a discretionary
release is not appropriate;
(2) A statement that the decision is final for the Bureau and for the
Department of Commerce;
(3) Advice that judicial review of the denial is available in the
district in which the requester resides or has his principal place of
business, the district in which the agency records are situated, or the
District of Columbia; and
(4) The names and titles or positions of each official responsible
for the denial of the request.
(g) No final denial may be issued without (1) consulting with the
Office of the Special Assistant to the Secretary for Public Affairs, and
(2) concurrence of the Office of the General Counsel of the Department.
(h) Final appeal decisions shall be indexed and kept available for
public inspection and copying. Copies shall be sent to the Department's
Assistant Secretary for Administration and Assistant General Counsel for
Administration.
15 CFR 60.10 Fees.
A uniform schedule of fees and procedures for collecting fees for the
U.S. Department of Commerce has been promulgated and is published in 15
CFR 4.9, and applies to all requests for Bureau of the Census records
made under the Freedom of Information Act.
15 CFR 60.11 Arrangements for public inspection and copying of
available records.
(a) Upon receipt of the records search fee, and any fees for
additional services requested by the applicant, the requested record
which has been determined to be available shall, unless the applicant
has otherwise indicated, be transferred to the Census reference
facility, where it will be held for inspection by the applicant for a
reasonable time. The address, and hours of operation, of this facility
are stated in 60.5(d). A reasonable time shall generally be considered
to be not less than one week or more than three weeks. In the event the
requester does not review the records within this time, they shall be
refiled and paragraph (e) of this section will apply.
(b) In the event that disclosable records are required for the
conduct of the daily business of the Bureau during the time when they
would otherwise be available in the facility, the requester shall be so
notified at the time it is determined that the records are to be made
available in the Census facility for inspection. If the requester does
not appear at the appointed time, the records shall be refiled and
paragraph (e) of this section will apply.
(c) During inspection of the record at the facility, the applicant
may copy by hand any portion of the record, may request the facility to
make a copy thereof, and may obtain certification of a machine-copied
record in accordance with the fee structure in 60.10.
(d) No changes or alterations of any type may be made to the record
being inspected, nor may any matter be added to or subtracted therefrom.
Papers bound or otherwise assembled in a record file may not be
dissembled during inspection. Staff of the facility shall provide
assistance if dissembly of a record is necessary for copying purposes,
and are authorized to supervise public inspection as necessary to
protect the records of the Bureau. The public is reminded of Title 18,
United States Code, section 2701(a), which makes it a crime to conceal,
remove, mutilate, obliterate, or destroy any record filed in any public
office, or to attempt to do any of the foregoing.
(e) If the records are not reviewed as outlined in paragraph (a) or
(b) of this section they will not be made available again for inspection
until the following requirements are met:
(1) All monies due on the first request have been remitted; (2) any
estimated fee for a second search is paid; (3) the requester initiates
and confirms a specific appointment time.
(f) If an applicant does not want to inspect a record by personal
visit, he may request that a copy thereof be mailed to him, upon payment
of the copying and postage fees set forth in 60.10. Original copies of
records shall not be sent to any location other than the reference
facility for public inspection pursuant to 5 U.S.C. 552(a)(3).
15 CFR 60.11 PART 70 -- CUTOFF DATES FOR RECOGNITION OF BOUNDARY
CHANGES FOR THE 1990 CENSUS
Sec.
70.1 Cutoff dates and effect on enumeration and data tabulation.
70.2 ''Municipality'' and ''county subdivision'' defined for census
purposes.
70.3 Effect of boundary changes occurring or reported after the
cutoff dates.
Authority: 13 U.S.C. 4; 32 FR 15154; and Department of Commerce
Organization Order 35-2A (40 FR 42765).
Source: 51 FR 24653, July 8, 1986, unless otherwise noted.
15 CFR 70.1 Cutoff dates and effect on enumeration and data tabulation.
For the tabulation and publication of data from the 1990 Census of
Population and Housing, the Bureau of the Census will recognize only
those boundaries legally in effect on January 1, 1990 that have been
reported officially to the Bureau of the Census no later than March 1,
1990. The Bureau of the Census enumerates respondents on the date of
the decennial census as residing within the legal limits of
municipalities, county subdivisions, counties, States, and equivalent
areas as those limits exist on January 1, 1990.
15 CFR 70.2 ''Municipality'' and ''county subdivision'' defined for
census purposes.
For the purposes of this part, the Bureau of the Census defines
''municipalities'' and ''county subdivisions'' to include the areas
identified as incorporated places (such as cities and villages) and
minor civil divisions (such as townships and magisterial districts). A
more complete description appears on pages A1 and A2 of 1980 Census of
Population, Volume I, Chapter A.
15 CFR 70.3 Effect of boundary changes occurring or reported after the
cutoff dates.
The Bureau of the Census will not recognize changes in boundaries
that become effective after January 1, 1990 in taking the 1990 Decennial
Census; the Bureau of the Census will enumerate the residents of any
area that are transferred to another jurisdiction after that date and
report them for the 1990 census as residents of the area in which they
resided on January 1, 1990. The Bureau of the Census will not recognize
in the data tabulations prepared for the 1990 census changes occurring
on or before January 1, 1990, but not submitted officially to the Bureau
of the Census until after March 1, 1990 except as necessary to conduct
decennial census operations.
15 CFR 70.3 PART 80 -- FURNISHING PERSONAL CENSUS DATA FROM CENSUS OF
POPULATION SCHEDULES
Sec.
80.1 General requirements.
80.2 Rules pertaining to records of the living.
80.3 Rules applicable to deceased persons and estates.
80.4 Signature of persons unable to sign their name.
80.5 Detrimental use of information.
80.6 False statements.
Authority: Sec. 1, Pub. L. 83-1158, 68 Stat. 1013 (13 U.S.C. 8).
15 CFR 80.1 General requirements.
(a) Data from records of decennial census of population
questionnaires pertaining to an individual will be released only in
accordance with these rules.
(b) Census information contains only the responses recorded by the
Census enumerator; no changes of any of these entries have been or can
be made.
(c) Requests for information from decennial census of population
records (herein ''Census information'') should be made on Form BC-600,
which is available from offices of the Bureau of the Census at Suitland,
Maryland 20233 and Pittsburg, Kansas 66762, all county courthouses,
Social Security field offices, and Immigration and Naturalization
Service offices. A letter request -- without Form BC-600 -- will be
accepted only if it contains the information necessary to complete a
Form BC-600. No application will be processed without payment of the
required fee as set forth in 15 CFR 50.5.
(d) The Bureau may require verification of the identity of the
applicant requesting Census information and it may require the applicant
to submit the following notarized statement:
I, -------------------- (Printed name), do hereby certify that I am
the individual to whom the requested record pertains or that I am within
the class of persons authorized to act on his behalf in accordance with
15 CFR, Part 80.
(Signature)
(Date)
In the County of
State of
On this ------ day of -------- , 19 ---- , -------------------- (Name
of individual) who is personally known to me, did appear before me and
sign the above certificate.
(Signature)
(Date)
(S) My commission expires
(e) Except as otherwise provided, Census information will be provided
only to the individual to whom the record pertains. It will include the
names of the subject and the head of the household, the relationship of
the subject to the head of the household, and the subject's age and
birthplace.
(f) Similar Census information pertaining to other members of a
household will be furnished only upon written authorization of the
individual whose record is requested, except as provided in 80.3.
(g) Census information may be provided to others only upon signed
request by an individual entitled to receive the information which
indicates the person and address to which the information is to be sent.
(Approved by the Office of Management and Budget under control number
0607-0117)
(40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23,
1983)
15 CFR 80.2 Rules pertaining to records of the living.
(a) An individual who has attained age 18 may request his or her own
Census information.
(b) A parent may request Census information for and in behalf of a
child who has not reached age 18. The request must be signed by one of
the parents.
(c) A legal guardian may obtain Census information relating to a ward
by submitting a certified copy of the order of guardianship appointment.
(Approved by the Office of Management and Budget under control number
0607-0117)
(40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23,
1983)
15 CFR 80.3 Rules applicable to deceased persons and estates.
(a) Census information relating to a deceased person may be released
only to a parent, child, grandchild, brother, sister, spouse, insurance
beneficiary, or the executor or administrator of a deceased person's
estate. The request must be signed by a person entitled to receive the
information as provided herein, state the relationship of the applicant
to the deceased, and include a certified copy of the death certificate
or other adequate proof of death. The request of an executor or
administrator must be accompanied by a certified copy of the court order
of appointment.
(b) Except for a spouse, a person related to the deceased person
through marriage, such as an in-law relationship, is not eligible to
request Census information on the deceased, whether or not the applicant
was a member of the household of the deceased.
(Approved by the Office of Management and Budget under control number
0607-0117)
(40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23,
1983)
15 CFR 80.4 Signature of persons unable to sign their name.
A person requesting Census information who is unable to sign his or
her name shall make an ''X'' mark where signature is required, and the
mark must be witnessed by two persons who know the applicant. They must
also sign the application certifying the applicant's identity. In the
case of such persons who are unable to make an ''X'' mark, Census
information can be released upon receipt of a physician's sworn
statement verifying the disability and the written request of a parent,
brother, sister, child or a spouse.
(Approved by the Office of Management and Budget under control number
0607-0117)
(40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23,
1983)
15 CFR 80.5 Detrimental use of information.
Section 8 of Title 13, United States Code requires that,
In no case shall information furnished under the authority of this
section be used to the detriment of the persons to whom such information
relates.
(40 FR 53232, Nov. 17, 1975)
15 CFR 80.6 False statements.
Any false statement or forgery on the application or supporting
papers required to obtain Census information is punishable by a fine
and/or imprisonment pursuant to section 1001 of Title 18 of the United
States Code.
(Approved by the Office of Management and Budget under control number
0607-0117)
(40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23,
1983)
15 CFR 80.6 PART 90 -- PROCEDURE FOR CHALLENGING CERTAIN POPULATION AND
INCOME ESTIMATES
Sec.
90.1 Scope and applicability.
90.2 Policy of the Bureau of the Census.
90.3 Definitions.
90.4 General.
90.5 When an informal challenge may be filed.
90.6 Where to file challenge.
90.7 Evidence required.
90.8 Review of challenge.
90.9 When formal procedure may be invoked.
90.10 Form of formal challenge and time limit for filing.
90.11 Appointment of hearing officer.
90.12 Qualifications of hearing officer.
90.13 Offer of hearing.
90.14 Hearing.
90.15 Decision by Director.
90.16 Notification of adjustment.
90.17 Timing for hearing and decision.
90.18 Representation.
Authority: 13 U.S.C. 4 and 181.
Source: 44 FR 20647, Apr. 6, 1979, unless otherwise noted.
15 CFR 90.1 Scope and applicability.
These rules prescribe the administrative procedure available to
States and units of local government to challenge the current estimates
of population or per capita income developed by the Bureau of the
Census.
15 CFR 90.2 Policy of the Bureau of the Census.
It is the policy of the Bureau of the Census to provide the most
accurate population and per capita income estimates possible given the
constraints of time, money, and available statistical techniques. It is
also the policy of the Bureau to provide States and units of local
government the opportunity to challenge these estimates and to present
probative evidence relating to the accuracy of the estimates.
15 CFR 90.3 Definitions.
As used in this part (except where the context clearly indicates
otherwise) the following definitions shall apply:
(a) Bureau means the Bureau of the Census, Department of Commerce.
(b) Challenge means, in accordance with this part, the process of
objecting to or calling into question the Bureau's population or per
capita income estimates of a State or unit of local government by that
State or unit of local government. A demand for adjustment to the
General Revenue Sharing Act, Pub. L. 92-512, section 102(b), as amended
(31 U.S.C. 1222(b)) does not constitute a challenge within the meaning
of this part.
(c) Director means Director of the Bureau of the Census, or an
individual designated by the Director to perform under this part.
(d) Estimate means a statistically derived intercensal population or
per capita income figure prepared to update earlier census figures.
(e) State includes the District of Columbia.
(f) Unit of local government means the government of a county,
municipality, township, place, or other minor civil division, which is a
unit of general government below the State.
15 CFR 90.4 General.
This part provides a procedure for a State or unit of local
government to challenge the population or per capita income estimates of
the Bureau. The Bureau shall receive these challenges and attempt to
resolve them informally with the locality. If the challenge is not
resolved informally, the challenging State or unit of local government
may then, at its option, proceed formally.
15 CFR 90.5 When an informal challenge may be filed.
An informal challenge to the population or per capita income
estimates may be filed any time up to 180 days after the release of the
estimates by the Bureau of the Census. Publication by the Bureau of the
Census and simultaneous publication of a release notification in the
Federal Register shall constitute release. A challenge to any estimate
may also be filed any time up to 180 days from the date the Census
Bureau, on its own initiative, revises that estimate.
If, however, a state or unit of local government has sufficiently
meritorious reason for not filing in a timely manner, the Census Bureau
has the discretion to accept the challenge.
(50 FR 28768, July 16, 1985)
15 CFR 90.6 Where to file challenge.
A challenge must be prepared in writing by the unit of government and
is to be filed with the Chief, Population Division, Bureau of the
Census, Room 2011, Federal Building 3, Washington, D.C. 20233.
15 CFR 90.7 Evidence required.
The challenging State or unit of local government shall provide
whatever evidence it has relative to the challenge at the time the
challenge is filed. The Bureau may request further evidence.
15 CFR 90.8 Review of challenge.
The Chief, Population Division, Bureau of the Census, or the Chief's
designee shall review the challenge and the evidence supporting the
challenge and shall attempt to resolve the challenge.
15 CFR 90.9 When formal procedure may be invoked.
In the event the Chief, Population Division, is unable to resolve the
challenge to the satisfaction of the challenging State or unit of local
government, the challenging State or unit of local government shall be
informed in writing of the reasons for the outcome and of its right to
proceed formally.
15 CFR 90.10 Form of formal challenge and time limit for filing.
The formal challenge shall be in writing and may be mailed or hand
delivered to the Director, Bureau of the Census, Washington, D.C.
20233. The formal challenge shall include a list indicating the material
submitted to the Chief, Population Division, during the informal stage,
and shall include any additional relevant material it chooses to submit.
The formal challenge shall be filed within 30 days of the date the
State or unit of local government receives notification by certified
mail (return receipt requested) of its right to proceed formally. If,
however, a State or unit of local government has a sufficiently
meritorious reason for not filing in a timely manner, the Bureau has the
discretion to accept the formal challenge.
15 CFR 90.11 Appointment of hearing officer.
Upon receipt of a formal challenge filed in accordance with this
part, the Director will appoint a hearing officer to receive written and
oral evidence.
15 CFR 90.12 Qualifications of hearing officer.
The hearing officer, a person not involved in the preparation of the
estimates being challenged, shall be appointed by the Director from a
roster of employees of the Bureau of the Census who have been approved
in advance by the Assistant Secretary for Administration, Department of
Commerce.
15 CFR 90.13 Offer of hearing.
The hearing officer shall receive the formal challenge and shall
notify the State or unit of local government in writing of (a) its right
to a hearing prior to the development of a recommended decision for the
consideration of the Director; and (b) its right to the development of
a recommended decision for the consideration of the Director without a
hearing. If the State or unit of local government requests that a
hearing be conducted, the hearing officer shall establish the date,
time, and meeting place for the hearing, in accordance with 19.14a.
15 CFR 90.14 Hearing.
(a) The hearing shall be conducted by the same hearing officer who
collected the documentary evidence, if possible, and shall be held at
Bureau of the Census headquarters in Suitland, Md., unless the hearing
officer determines that the hearing should be held elsewhere.
(b) The hearing shall be conducted in a manner so as to bring out the
pertinent facts relating to the challenge.
(c) The rule of evidence will not be strictly enforced but irrelevant
and unduly repetitious testimony shall be excluded.
(d) Cross-examination of all witnesses is permitted and all testimony
shall be received under oath or affirmation.
(e) The hearing officer shall have the authority to: (1) Administer
oaths or affirmations, (2) rule on the admissibility of evidence, (3)
limit the number of witnesses, (4) exclude any person from the hearing
room for contumacious conduct or misbehavior that obstructs the hearing,
(5) perform other such acts as are necessary or appropriate to the
efficient conduct of any proceeding, and (6) make initial findings,
analyses, and recommendations.
(f) The hearing shall be recorded but no written record will be
prepared unless the Bureau so orders or unless the challenging locality
desires one in whole or part and pays the costs of such a written
record, or the apportioned costs should the Bureau also desire a written
record.
(g) The hearing officer shall prepare findings, analyses, and
recommendations and shall transmit them along with all documentary
evidence received and the tape or written record (if any) of the hearing
to the Director.
(44 FR 20647, Apr. 6, 1979, as amended at 50 FR 18990, May 6, 1985)
15 CFR 90.15 Decision by Director.
Upon receiving the material specified in 90.14(g), the Director
shall (a) review the findings and recommendations of the hearing
officer, and (b) prepare and transmit a letter to the challenging State
or unit of local government stating the decision and the reasons
therefor. A copy of the hearing officer's findings, analyses, and
recommendations shall also be transmitted to the challenging State or
unit of local government, and is otherwise publicly available. This
decision is final for the Department of Commerce.
15 CFR 90.16 Notification of adjustment.
In the event that the Director finds that the population or per
capita income estimate should be adjusted, the Bureau shall promptly
inform the appropriate governmental agencies of the revision.
15 CFR 90.17 Timing for hearing and decision.
A maximum period of 120 days, unless additional time is required for
sufficiently meritorious reason, shall be provided beyond the closing
date for the filing of informal challenges to allow for (a) resolution
of informal challenges, (b) appointment of the hearing officer, and (c)
the completion of formal hearings. A maximum of 30 additional days
shall be allowed for deliberations by the hearing officer and staff. A
maximum of an additional 30 days shall also be provided beyond this
during which the Census Bureau Director must rule on all cases. Neither
the timing nor the general provisions contained in these regulations
shall affect the rights of communities to a review through the data
improvement program of the Office of Revenue Sharing under the
provisions of Pub. L. 92-512, section 102(b), as amended (31 U.S.C.
1222(b)). Localities challenging only through the Office of Revenue
Sharing may not have access to a formal hearing as provided in these
regulations.
15 CFR 90.18 Representation.
A challenging unit of government may be represented by its chief
executive officer or by counsel, or other duly authorized representative
as designated by the chief executive officer in writing to the Bureau.
15 CFR 90.18 PART 100 -- SEAL
Sec.
100.1 Authority.
100.2 Description.
100.3 Custody.
Authority: R.S. 161, as amended, sec. 3, 68 Stat. 1012, as amended
(5 U.S.C. 301, 13 U.S.C. 3).
Source: 25 FR 2163, Mar. 16, 1960, unless otherwise noted.
Redesignated at 50 FR 23947, June 7, 1985.
15 CFR 100.1 Authority.
Pursuant to section 3 of Title 13, United States Code, the Bureau of
the Census official seal and design thereof, which accompanies and is
made a part of this document, is hereby approved.
15 CFR 100.2 Description.
Seal: On a shield an open book beneath which is a lamp of knowledge
emitting rays above in base two crossed quills. Around the whole a
wreath of single leaves, surrounded by an outer band bearing between two
stars the words ''U.S. Department of Commerce'' in the upper portion and
''Bureau of the Census'' in the lower portion, the lettering concentric
with an inner beaded rim and an outer dentilated rim.
15 CFR 100.3 Custody.
The seal shall remain in the custody of the Director, Bureau of the
Census or such officer or employee of the Bureau as he designates and
shall be affixed to all certificates and attestations that may be
required from the Bureau.
Insert Illus. 3A
15 CFR 100.3 PARTS 101 -- 199 (RESERVED)
15 CFR 100.3 15 CFR Ch. II (1-1-92 Edition)
15 CFR 100.3 Natl. Inst. of Stds. & Tech., Commerce
15 CFR 100.3 CHAPTER II -- NATIONAL INSTITUTE OF
15 CFR 100.3 STANDARDS AND TECHNOLOGY,
15 CFR 100.3 DEPARTMENT OF COMMERCE
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER A -- MEASUREMENT SERVICES
Part
Page
200 Policies, services, procedures, and fees
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER B -- STANDARD REFERENCE MATERIALS
230 Standard reference materials
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER C -- TRANSCRIPT SERVICES -- (RESERVED)
15 CFR 100.3 SUBCHAPTER D -- STANDARDS FOR BARRELS
240 Barrels and other containers for lime
241 Barrels for fruits, vegetables and other dry commodities, and for
cranberries
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER E -- FELLOWSHIPS AND RESEARCH ASSOCIATES
255 Fellowships in laboratory standardization and testing for
qualified citizens of other American Republics
256 Research Associate Program
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER F -- REGULATIONS GOVERNING TRAFFIC AND CONDUCT
265 Regulations governing traffic and conduct on the grounds of the
National Institute of Standards & Technology, Gaithersburg, Maryland,
and Boulder and Fort Collins, Colorado
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER G -- INVENTION EVALUATION PROCEDURES
270 Procedures for the evaluation of energy-related inventions
15 CFR 100.3
15 CFR 100.3 SUBCHAPTER H -- REGULATIONS GOVERNING APPEARANCE OF NIST
EMPLOYEES IN PRIVATE LITIGATION
275 Policies and procedures governing the appearance of NIST
employees as witnesses in private litigation
15 CFR 100.3
15 CFR 100.3 SUBCHAPTERS I -- J (RESERVED)
15 CFR 100.3 SUBCHAPTER K -- ADVANCED TECHNOLOGY PROGRAM PROCEDURES
290 Regional Centers for the Transfer of Manufacturing Technology
295 Advanced Technology Program
15 CFR 100.3
15 CFR 100.3 15 CFR Ch. II (1-1-92 Edition)
15 CFR 100.3 Natl. Inst. of Stds. & Tech., Commerce
15 CFR 100.3 SUBCHAPTER A -- MEASUREMENT SERVICES
15 CFR 100.3 PART 200 -- POLICIES, SERVICES, PROCEDURES, AND FEES
Sec.
200.100 Statutory functions.
200.101 Measurement research.
200.102 Types of calibration and test services.
200.103 Consulting and advisory services.
200.104 Standard reference materials.
200.105 Standard reference data.
200.106 Publications.
200.107 WWV-WWVH-WWVB broadcasts.
200.108 Request procedure.
200.109 Shipping, insurance, and risk of loss.
200.110 Priorities and time of completion.
200.111 Witnessing of operations.
200.112 Reports.
200.113 Use of results or reports.
200.114 Fees and bills.
200.115 Description of services and list of fees, incorporation by
reference.
Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277.
Interprets or applies sec. 7, 31 Stat. 1450; 15 U.S.C. 275a.
Source: 45 FR 55166, Aug. 19, 1980, unless otherwise noted.
Editorial Note: Nomenclature changes to part 200 appear at 55 FR
38315, Sept. 18, 1990.
15 CFR 200.100 Statutory functions.
(a) The National Institute of Standards & Technology (NIST) has been
assigned the following functions (15 U.S.C. 271 et seq.):
(1) The custody, maintenance, and development of the national
standards of measurement, and the provision of means and methods for
making measurements consistent with those standards, including the
comparison of standards used in scientific investigations, engineering,
manufacturing, commerce, and educational institutions with the standards
adopted or recognized by the Government.
(2) The determination of physical constants and properties of
materials when such data are of great importance to scientific or
manufacturing interests and are not to be obtained with sufficient
accuracy elsewhere.
(3) The development of methods for testing materials, mechanisms, and
structures, and the testing of materials, supplies, and equipment,
including items purchased for use of Government departments and
independent establishments.
(4) Cooperation with other governmental agencies and with private
organizations in the establishment of standard practices, incorporated
in codes and specifications.
(5) Advisory service to Government agencies on scientific and
technical problems.
(6) Invention and development of devices to serve special needs of
the Government.
(b) The calibration and testing activities of NIST stem from the
functions in paragraphs (a) (1) and (3) of this section. NIST provides
the central basis within the United States for a complete and consistent
system of measurement; coordinates that system, and the measurement
systems of other nations; and furnishes essential services leading to
accurate and uniform physical measurements throughout this Nation's
scientific community, industry, and commerce.
(c) The provision of standard reference materials for sale to the
public is assigned to the Office of Standard Reference Materials of the
National Measurement Laboratory, NIST. That Office evaluates the
requirements of science and industry for carefully characterized
reference materials, stimulates efforts of NIST to develop methods for
production of needed reference materials and directs their production
and distribution. For further information on standard reference
materials see Subchapter B, Chapter II, Part 230, of this title.
15 CFR 200.101 Measurement research.
(a) The NIST staff continually reviews the advances in science and
the trends in technology, examines the measurement potentialities of
newly discovered physical phenomena, and uses these to devise and
improve standards, measuring devices, and measurement techniques. As
new requirements appear, there are continual shifts of program emphasis
to meet the most urgent needs for the measurement of additional
quantities, extended ranges, or improved accuracies.
(b) The basic research and development activities of NIST are
primarily funded by direct appropriations, and are aimed at meeting
broad general needs. NIST may also undertake investigations or
developments to meet some specialized physical measurement problem of
another Government agency, industrial group, or manufacturing firm,
using funds supplied by the requesting organization.
15 CFR 200.102 Types of calibration and test services.
(a) NIST has developed instrumentation and techniques for realizing
standards for the seven base units of the International System of Units,
as agreed upon by the General Conference of Weights and Measures.
Reference standards have been established not only for these seven base
units, but also for many derived quantities and their multiples and
submultiples. Such reference standards, or equivalent working
standards, are used to calibrate laboratory and plant standards for
other organizations. Accuracy is maintained by stability checks, by
comparison with the standards of other national and international
laboratories, and by the exploration of alternative techniques as a
means of reducing possible systematic error.
(b) Calibrations for many types of instruments and ranges of physical
quantities are described in the NIST Special Publication 250 (SP 250).
(See 200.115 for details relating to the description of service items
and listing of fees.)
(c) In recent years NIST has offered to the public new measurement
services called measurement assurance programs. These programs are
designed for laboratories whose measurement process involves the
calibration of other standards. A measurement assurance program is a
measurement quality control process. By use of carefully designed
redundant measurements and measurements made on NIST transport standards
a total uncertainty of the laboratories measurement process can be
determined by NIST. The results of these tests are then reported to the
customer as uncertainties of the customer's measurements relative to
national standards.
(d) Special measurements not listed in SP 250 may be made upon
request. These might involve unusual physical quantities, upper or
lower extremes of range, higher levels of accuracy, fast response
speeds, short durations, broader ranges of associated parameters, or
special environmental conditions. Such inquiries should describe
clearly the measurement desired. Indication of the scientific or
economic basis for the requirements to be satisfied will be helpful in
determining future NIST programs. Fees for work accepted will be based
upon actual costs incurred.
(e) The principal emphasis of NIST is on those calibrations and other
tests requiring such accuracy as can be obtained only by direct
comparison with its standards.
(f) Other services which may be obtained include:
(1) Tests of measuring instruments to determine compliance with
specifications or claims, when the evaluation is critical in national
scientific or technical operations, and when suitable facilities are not
available elsewhere; and
(2) Referee tests in important cases when clients are unable to agree
upon the method of measurement, the results of tests, or the
interpretation of these results, but have agreed in advance in writing
to accept and abide by the findings of NIST.
(g) NIST reserves the right to decline any request for services if
the work would interfere with other activities deemed by the Director to
be of greater importance. In general, measurement services are not
provided when available from commercial laboratories.
(h) Suggestions will be offered on measurement techniques and on
other sources of assistance on calibration or measurement problems when
the equipment and personnel of NIST are unable to undertake the work.
The National Conference of Standards Laboratories issues a Directory of
Standards Laboratories in the United States which perform calibration
work (obtainable from NCSL Secretariat, c/o National Institute of
Standards & Technology, Boulder, CO 80303). Those laboratories which
perform testing are listed in the ASTM Directory of Testing
Laboratories, Commercial and Institutional. (Directory available from
the Amercian Society for Testing and Materials, 1916 Race Street,
Philadelphia, PA 19103.) Similar listings appear in buyer's guides for
commercial products and in technical journals concerned with physical
measurement.
15 CFR 200.103 Consulting and advisory services.
(a) In areas of its special competence, NIST offers consulting and
advisory services on various problems related to measurement, e.g.,
details of design and construction, operational aspects, unusual or
extreme conditions, methods of statistical control of the measurement
process, automated acquisition of laboratory data, and data reduction
and analysis by computer. Brief consultation may be obtained at no
charge; the fee for extended effort will be based upon actual costs
incurred. The services outlined in this paragraph do not include
services in connection with legal proceedings not involving the United
States as a named party, nor to testimony or the production of data,
information, or records in such legal proceedings which is governed by
the policies and procedures set forth in Subchapter H, Chapter II, Part
275, of this title.
(b) To enhance the competence of standards laboratory personnel, NIST
conducts at irregular intervals several group seminars on the precision
measurement of specific types of physical quantities, offering the
opportunity of laboratory observation and informal discussion. A
brochure describing the current series of seminars can be obtained by
writing the Office of Measurement Services, National Institute of
Standards & Technology, Washington, DC 20234.
15 CFR 200.104 Standard reference materials.
Often the performance of a device or structure can be evaluated at
the user's laboratory by comparing its response to unknown materials
with its response to a stable, homogeneous reference specimen which has
been well-characterized with regard to the physical or chemical property
being measured. For information regarding carefully characterized
materials see Subchapter B, Chapter II, Part 230, of this title. The
Office of Standard Reference Materials in the NIST National Measurement
Laboratory administers a program to provide many types of
well-characterized materials that are needed to calibrate a measurement
system or to produce scientific data that can be readily referred to a
common base. NIST SP 260 is a catalog of Standard Reference Materials
available from NIST.
15 CFR 200.105 Standard reference data.
Data on the physical and chemical properties of the large variety of
substances used in science and technology need to be compiled and
evaluated for application in research, development, engineering design,
and commerce. The Office of Standard Reference Data (OSRD) in the NIST
National Measurement Laboratory provides coordination of and access to a
number of governmental and nongovernmental data centers throughout this
country and the world which are responsive to user needs for data. The
OSRD's present program is assembled under a series of tasks which
include data for application in energy, environment and health,
industrial process design, materials durability, and resource recovery.
The subject data are disseminated as hard-copy information in the
Journal of Physical and Chemical Reference Data, published jointly with
the American Chemical Society and the American Institute of Physics, in
the National Standard Reference Data System reports as the NSRDS-NIST
series, and as NIST special reports. Magnetic tapes of data on selected
topics are also issued through the OSRD and the National Technical
Information Service. A newsletter, ''Reference Data Report,'' is issued
bimonthly describing current activities. Information concerning the
above is available upon request from the OSRD.
15 CFR 200.106 Publications.
Publications provide the primary means of communicating the results
of the NIST programs and services to its varied technical audiences, as
well as to the general public. NIST issues some fifteen categories of
publications including three periodicals, ten non-periodicals series,
interagency reports, and papers in the journals and books of
professional organizations, technological associations, and commercial
publications. The calibration services, standard reference materials
and related measurement services along with changes and fees are
published in two Special Publications (SP's) and their supplements.
These are SP 250 ''Calibration and Related Measurement Services of the
National Institute of Standards & Technology''1 and SP 260 ''NIST
Standard Reference Materials Catalog.''1 A complete catalog of all
publications by NIST authors is issued annually as a supplement to SP
305 ''Publications of the National Institute of Standards &
Technology.'' Announcements and listings of recent NIST publications and
services are published in each issue of the bimonthly ''NIST Journal of
Research''2 and the NIST monthly magazine, ''Dimensions/NIST''2.
Complete citations to NIST publications, along with information on
availability are published bimonthly in the ''NIST Publications
Newsletter'', available free from the Technical Information and
Publications Division, National Institute of Standards & Technology,
Washington, DC 20234. NIST publications are also announced (with
abstracts) in ''Government Reports Announcements and Index'' published
every two weeks by the National Technical Information Service (NTIS),
Springfield, Virginia 221613. NTIS also sells microfiche copies of all
NIST GPO-published documents, as well as paper copy and microfiche
versions of NIST Interagency Reports.
1Single copies available free from the National Institute of
Standards & Technology, Washington, DC 20234.
2For sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402, for a subscription price. The
annual subscription price for the NIST Journal of Research on the date
of the publication of these regulations is $13.00 and for
Dimensions/NIST it is $11.00. Prices, however, for these publications
are subject to change without notice.
3The annual subscription rate at the date of the publication of these
regulations for this service is $275.00, North American Continent,
$375.00 all others.
15 CFR 200.107 WWV-WWVH-WWVB broadcasts.
(a) Technical services. The NIST radio stations WWV at Fort Collins,
Colorado, and WWVH on the island of Kauai, Hawaii, broadcast a number of
technical services continuously night and day. These services are:
(1) Standard radio frequencies, 2.5, 5, 10, 15, and 20, MHz (WWV) and
2.5, 5, 10, and 15 MHz (WWVH); (2) standard time signals; (3) time
intervals; (4) UTI corrections; (5) standard audio frequencies; (6)
standard musical pitch; (7) a slow time code; (8) Omega Navigation
System status reports; (9) geophysical alerts; and (10) marine storm
warnings. NIST also broadcasts time and frequency signals from its low
frequency station, WWVB, also located at Fort Collins, Colorado.
(b) Time announcements. Once per minute voice announcements are made
from WWV and WWVH. The two stations are distinguished by a female voice
from WWVH and a male voice from WWV. The WWVH announcement occurs
first, at 15 seconds before the minute, while the WWV announcement
occurs at 7 1/2 seconds before the minute. Coordinated Universal Time
(UTC) is used in these announcements.
(c) Time corrections. The UTC time scale operates on atomic
frequency, but by means of step adjustments is made to approximate the
astronomical UTI scale. It may disagree from UTI by as much as 0.9
second before step adjustments of exactly 1 second are made. These
adjustments, or leap seconds are required about once per year and will
usually be made on December 31 or June 30. For those who need
astronomical time more accurately than 0.9 second, a correction to UTC
is encoded by the use of double ticks after the start of each minute.
The first through the eighth seconds ticks will indicate a ''plus''
correction, and from the ninth through the 16th a ''minus'' correction.
The correction is determined by counting the number of double ticks.
For example, if the first, second, and third ticks are doubled, the
correction is ''plus'' 0.3 second. If the ninth, 10th, 11th, and 12th
ticks are doubled, the correction is ''minus'' 0.4 second.
(d) Standard time intervals. An audio pulse (5 cycles of 1000 Hz on
WWV and 6 cycles of 1200 Hz on WWVH), resembling the ticking of a clock,
occurs each second of the minute except on the 29th and 59th seconds.
Each of these 5-millisecond second pulses occur within a 40-millisecond
period, wherein all other modulation (voice or tone) is removed from the
carrier. These pulses begin 10 milliseconds after the modulation
interruption. A long pulse (0.8 second) marks the beginning of each
minute.
(e) Standard frequencies. All carrier and audio frequencies occur at
their nominal values according to the International System of Units
(SI). For periods of 45-second duration, either 500-Hz or 600-Hz audio
tones are broadcast in alternate minutes during most of each hour. A
440-Hz tone, the musical pitch A above middle C, is broadcast once per
hour near the beginning of the hour.
(f) Accuracy and stability. The time and frequency broadcasts are
controlled by the NIST atomic frequency standards, which realize the
internationally defined cesium resonance frequency with an accuracy of 1
part in 1013. The frequencies transmitted by WWV and WWVH are held
stable to better than 2 parts in 1011 at all times. Deviations at WWV
are normally less than 1 part in 1012 from day to day. Incremental
frequency adjustments not exceeding 1 part in 1012 are made at WWV and
WWVH as necessary. Changes in the propagation medium (causing Doppler
effect, diurnal shifts, etc.) result in fluctuations in the carrier
frequencies as received which may be very much greater than the
uncertainties described above.
(g) Slow time code. A modified IRIG H time code occurs continuously
on a 100-Hz subcarrier. The format is 1 pulse per second with a
1-minute time frame. It gives day of the year, hours, and minutes in
binary coded decimal form.
(h) Omega announcements. Omega Navigation System status reports are
broadcast in voice from WWV at 16 minutes after the hour and from WWVH
at 47 minutes after the hour. The international Omega Navigation System
is a very low frequency (VLF) radio navigation aid operating in the 10
to 14 kHz frequency band. Eight stations are in operation around the
world. Omega, like other radio navigation systems, is subject to signal
degradation caused by ionospheric disturbances at high latitudes. The
Omega announcements on WWV and WWVH are given to provide users with
immediate notification of such events and other information on the
status of the Omega system.
(i) Geophysical alerts. These occur in voice at the 18th minute of
each hour from WWV. They point out outstanding events which are in
process, followed by a summary of selected solar and geophysical events
in the past 24 hours and a forecast for the next 24 hours. They are
provided by the Space Environment Laboratory, National Oceanic and
Atmospheric Administration, Boulder, CO 80303.
(j) Marine storm information. Weather information about major storms
in the Atlantic and eastern North Pacific are broadcast in voice from
WWV at 8, 9, and 10 minutes after each hour. Similar storm warnings
covering the eastern and central North Pacific are given from WWVH at
48, 49, and 50 minutes after each hour. An additional segment (at 11
minutes after the hour on WWV and at 51 minutes on WWVH) may be used
when there are unusually widespread storm conditions. The brief
messages are designed to tell mariners of storm threats in their areas.
If there are no warnings in the designated areas, the broadcasts will so
indicate. The ocean areas involved are those for which the U.S. has
warning responsibility under international agreement. The regular times
of issue by the National Weather Service are 0500, 1100, 1700, and 2300
UTC for WWV and 0000, 0600, 1200, and 1800 UTC for WWVH. These
broadcasts are updated effective with the next scheduled announcement
following the time of issue.
(k) ''Silent'' periods. These are periods with no tone modulation
during which the carrier, seconds ticks, minute time announcements, and
100 Hz modified IRIG H time code continue. They occur during the 16th
through the 20th minute on WWVH and the 46th through the 51st minute on
WWV.
(l) WWVB. This station (antenna coordinates 40 40'28.3'' N., 105
02'39.5'' W.; radiated power 12 kw.) broadcasts on 60 kHz. Its time
scale is the same as for WWV and WWVH, and its frequency accuracy and
stability are the same. Its entire format consists of a 1 pulse per
second special binary time code giving minutes, hours, days, and the
correction between its UTC time scale and UTI astronomical time.
Identification of WWVB is made by its unique time code and a 45 carrier
phase shift which occurs for the period between 10 minutes and 15
minutes after each hour. The useful coverage area of WWVB is within the
continental United States. Propagation fluctuations are much less with
WWVB than with high-frequency reception, permitting frequency
comparisons to be made to a few parts in 1011 per day.
(m) Special Publication 432. This publication describes in detail
the standard frequency and time service of NIST. Single copies may be
obtained at no charge upon request from the National Institute of
Standards & Technology, Time & Frequency Services Group, 524.06,
Boulder, CO 80303. Quantities may be obtained from the Superintendent
of Documents, U.S. Government Printing Office, Washington, DC 20402, at
a nominal charge per copy.
15 CFR 200.108 Request procedure.
(a) A formal purchase order for the calibration or test should be
sent before or at the time the instrument or standard is shipped. The
purchase order should provide clear identification of the apparatus
being submitted, and give separate instructions for return shipment,
mailing of report, and billing. If a customer wishes to minimize the
time during which the equipment is out of service, the customer can
usually arrange to be notified of the scheduled test date to allow
timely shipment. (See 200.110.) Requests from Federal agencies, or
from State agencies, for calibrations or tests on material to be used on
private or Federal contract work should be accompanied either by
purchase order or by letter or document authorizing the cost of the work
to be billed to the agency.
(b) The submission of a purchase order for measurement services under
this subchapter shall be understood as constituting an agreement on the
part of the customer to be bound by the restrictions on the use of
results as set forth in 200.113 of this part. Acceptance of purchase
orders does not imply acceptance of any provisions set forth in the
order contrary to the policy, practice, or regulations of NIST or the
U.S. Government. (A statement to the effect that NIST is an agency of
the U.S. Government should satisfy other Government agencies with regard
to compliance with Government regulations and Executive orders.)
(c) A test number will be assigned by NIST to each instrument or
group of similar instruments or standards when the order is accepted.
This test number should be referred to in all subsequent communications.
Also, each instrument in a group must be uniquely identified, usually
by the manufacturer's name and instrument serial number. When the
serial number is lacking, an alternative identifying mark should be
provided. If none is found, NIST will mark the piece with an NIST
identification number. If the apparatus submitted has been previously
calibrated by NIST, the serial number or identifying mark should be
given on the new order, so that a continuing record of stability history
can be established.
(d) Inquiries for measurement services should be directed to the NIST
address listed in the various sections of the Appendix to SP 250.
15 CFR 200.109 Shipping, insurance, and risk of loss.
(a) Shipment of apparatus to NIST for calibration or other test
should be made only after the customer has accepted the estimate of cost
and the tentative scheduling. Repairs and adjustments on apparatus
submitted should be attended to by the owner, since NIST will not
undertake them except by special arrangement. Apparatus not in good
condition will not be calibrated. If defects are found after
calibration has begun, the effort may be terminated, a report issued
summarizing such information as has been found, and a fee charged in
accordance with the amount of work done.
(b) The customer should pack apparatus sent to NIST so as to minimize
the likelihood of damage in shipment and handling. Suggestions on
packing and shipping are made in some sections of SP 250. In every
case, the sender should consider the nature of the apparatus, pack it
accordingly, and clearly label shipments containing fragile instruments
or materials, such as glass and the like.
(c) To minimize damage during shipment resulting from inadequate
packing, the use of strong reusable containers is recommended. As an
aid in preventing loss of such containers, the customer's name should be
legibly and permanently marked on the outside. In order to prolong the
container's use the notation ''REUSABLE CONTAINER, DO NOT DESTROY''
should be marked on the outside.
(d) Shipping and insurance coverage instructions should be clearly
and legibly shown on the purchase order for the calibration or test.
The customer must pay shipping charges to and from NIST; shipments from
NIST will be made collect. The method of return transportation should
be stated, and it is recommeded that return shipments be insured, since
NIST will not assume liability for their loss or damage. For
long-distance shipping it is found that air express and air freight
provide an advantage in reduction of time in transit. If return
shipment by parcel post is requested or is a suitable mode of
transportation, shipments will be prepaid by NIST, but without covering
insurance. When no shipping or insurance instructions are furnished,
return shipment will be made by common carrier collect, but uninsured.
(e) NIST will not be responsible for the risk of loss or damage to
any item during shipment to or from NIST. Any arrangements for
insurance covering this risk must be made by the customer. Return
shipment will be made by NIST as indicated in paragraph (d) of this
section. The purchase order should always show the value of the
equipment, and if transit insurance is carried by the customer, this
fact should be stated.
(f) The risk of loss or damage in handling or testing of any item by
NIST must be assumed by the customer, except when it is determined by
NIST that such loss or damage was occasioned solely by the negligence of
NIST personnel.
(g) When a test number has been assigned prior to shipment to NIST,
this number should be clearly marked on the shipping container. When a
test number has not been assigned, an invoice, copy of the purchase
order, or letter should be enclosed in the shipment to insure proper
identification. The original purchase order should be forwarded as
appropriate to:
Office of Measurement Services, National Institute of Standards &
Technology, Washington, DC 20234; or to Measurement Services Clerk,
National Institute of Standards & Technology, Boulder, CO 80303.
(h) The calibrations listed in SP 250 are performed at Boulder,
Colorado and Gaithersburg, Maryland.
15 CFR 200.110 Priorities and time of completion.
Schedule work assignments for calibrations and other tests will
generally be made in the order in which confirmed requests are received.
However, Government work may be given priority. On the regular
services, the workload is usually such that the turn-around interval,
between the date a customer's apparatus is received and the date it is
prepared for return shipment, will be not more than 45 days. Some types
of instruments may require considerably longer, particularly if their
abnormal behavior requires reruns to check reliability. The customer
who can spare the instrument for only a short time can usually arrange
by letter or telephone call for shipping it to NIST just as the assigned
starting date approaches. A notice will be sent acknowledging receipt
of the customer's standard and/or purchase order. If both a confirmed
purchase order (or equivalent) and the apparatus have been received,
estimates of the completion date and the calibration fee will be sent
upon request.
15 CFR 200.111 Witnessing of operations.
NIST welcomes scientists and engineers who may wish to visit its
laboratories and discuss its methods. Ordinarily visitors will not be
permitted to witness the actual carrying out of highly precise
measurements because their presence introduces distraction that may lead
to errors or delays. This policy may be waived in those cases where
NIST determines that the visitor can be of service in setting up
apparatus of a new or unusual nature, in the case of referee tests, or
in other cases in which the legal validity of the result may require the
presence of duly authorized witnesses.
15 CFR 200.112 Reports.
(a) Results of calibrations and other tests are issued to the
customer as formal reports entitled, ''National Institute of Standards &
Technology Report of Calibration,'' ''National Institute of Standards &
Technology Report of Test,'' or ''National Institute of Standards &
Technology Report of Analysis,'' as appropriate. Copies are not
supplied to other parties except under applicable Federal law. Whenever
formal certification is required by law, or to meet special conditions
adjudged by NIST to warrant it, a letter will be provided certifying
that the particular item was received and calibrated or tested, and
identifying the report containing the results.
(b) NIST reports of calibration generally include in sentence form a
statement of the uncertainty attached to the numerical values reported.
Limits of uncertainty usually comprise an estimate of systematic error
plus a value of imprecision. Details on how these estimates are arrived
at are in many cases included in the calibration report. Additional
information may be found in SP 250.
(c) The NIST practice is to express data given in calibration or test
reports in the SI or International System of Units. The International
System of Units (SI) was defined and given official status by the 11th
General Conference of Weights and Measures, 1960. A complete listing of
SI units is presented in detail in NIST SP 330. The NIST will express
data in SI units unless this makes communication excessively
complicated. For example, commercial gage designations, commonly used
items identified by nominal dimensions, or other commercial
nomenclatures or devices (such as drill sizes, or commercial standards
for weights and measures) expressed in customary units are an exception
from this practice. However, even in such instances, when practical and
meaningful, SI and customary units may be given in parallel. Users of
NIST calibration services may specify the units to be used in the
calibration, especially for commercial devices and standards using
customary units or units having some legal definition.
15 CFR 200.113 Use of results or reports.
(a) As the national standards laboratory of the United States, NIST
maintains and establishes the primary standards from which measurements
in science and industry ultimately derive. It is therefore sometimes
desirable for manufacturers or users of measurement standards to make
appropriate reference to the relationship of their calibrations to NIST
calibrations. The following considerations must be borne in mind, and
shall be understood as constituting an agreement on the part of the NIST
customer to be bound thereby in making reference to NIST calibration and
test reports.
(b) The results of calibrations and tests performed by NIST are
intended solely for the use of the organization requesting them, and
apply only to a particular device or specimen at the time of its test.
The results shall not be used to indicate or imply that they are
applicable to other similar items. In addition, such results must not
be used to indicate or imply that NIST approves, recommends, or endorses
the manufacturer, the supplier, or the user of such devices or
specimens, or that NIST in any way ''guarantees'' the later performance
of items after calibration or test.
(c) NIST declares it to be in the national interest that it maintain
an impartial position with respect to any commercial product.
Advertising the findings on a single instrument could be misinterpreted
as an indication of performance of other instruments of identical or
similar type. There will be no objection, however, to a statement that
the manufacturer's primary standards have been periodically calibrated
by NIST, if this is actually the case, or that the customer might
arrange to have NIST calibrate the item purchased from the manufacturer.
(d) NIST does not approve, recommend, or endorse any proprietary
product or proprietary material. No reference shall be made to NIST, or
to reports or results furnished by NIST in any advertising or sales
promotion which would indicate or imply that NIST approves, recommends,
or endorses any proprietary product or proprietary material, or which
has as its purpose an intent to cause directly or indirectly the
advertised product to be used or purchased because of NIST test reports
or results.
In its own activities as a scientific institution, NIST uses many
different materials, products, types of equipment, and services. This
use does not imply that NIST has given them a preferential position or a
formal endorsement. Therefore, NIST discourages references, either in
advertising or in the scientific literature, which identify it as a user
of any proprietary product, material, or service. Occasionally,
effective communication of results by NIST to the scientific community
requires that a proprietary instrument, product, or material be
identified in an NIST publication. Reference in an NIST publication,
report, or other document to a proprietary item does not constitute
endorsement or approval of that item and such reference should not be
used in any way apart from the context of the NIST publication, report,
or document without the advance express written consent of NIST.
15 CFR 200.114 Fees and bills.
(a) In accordance with 15 U.S.C. 271 et seq., fees are charged for
all measurement services performed by NIST, unless waived by the
Director, or the Director's designee, when deemed to be in the interest
of the Government. The above-mentioned statutes authorize the issuance
from time to time of appropriate regulations regarding the payment of
fees, the limits of tolerance on standards submitted for verification,
and related matters.
(b) The minimum fee for any service request accepted by NIST is $10,
unless otherwise indicated in SP 250. If apparatus is returned without
testing, a minimum charge of $10 may be made to cover handling. Charges
commensurate with the work performed will be assessed for calibrations
which cannot be completed because of faulty operation of the customer's
device. Fees for calibrations or tests include the cost of preparation
of an NIST report. Remittances should be made payable to the National
Institute of Standards & Technology.
15 CFR 200.115 Description of services and list of fees, incorporation
by reference.
(a) NIST Special Publication 250, ''Calibration and Related
Measurement Services of the National Institute of Standards &
Technology'' is hereby incorporated by reference, pursuant to 5 U.S.C.
552(a)(1) and 1 CFR Part 51. SP 250 states the authority under which
NIST performs various types of measurement services including
calibrations and tests and charges fees therefor, states the general
conditions under which the public may secure such services, decribes
these services in considerable detail, and lists the fees to be charged,
and sets out the instructions for requesting them in an appendix which
is reviewed, revised and reissued semi-annually (December and June).
The Director, Office of the Federal Register, approved the incorporation
by reference on December 28, 1967.
(b) SP 250 is available at the following places:
(1) Superintendent of Documents, Government Printing Office,
Washington, DC 20402.
(2) Technical Information and Publications Division, National
Institute of Standards & Technology, Washington, DC 20234.
(3) District Offices of the U.S. Department of Commerce.
(4) Federal Depository Libraries.
(c) Revisions of SP 250 will be issued from time to time by the
National Institute of Standards & Technology, Washington, DC 20234.
(d) Further information concerning policies, procedures, services,
and fees may be obtained by writing the Office of Measurement Services,
National Institute of Standards & Technology, Washington, DC 20234.
15 CFR 200.115 SUBCHAPTER B -- STANDARD REFERENCE MATERIALS
15 CFR 200.115 PART 230 -- STANDARD REFERENCE MATERIALS
15 CFR 200.115 Subpart A -- General Information
Sec.
230.1 Introduction.
230.2 Identification of Standard Reference Materials.
230.3 New Standard Reference Materials.
15 CFR 200.115 Subpart B -- Purchase Procedure
230.4 Ordering.
230.5 Terms and shipping.
230.6 Standard Reference Materials out of stock.
15 CFR 200.115 Subpart C -- Description of Services and List of Fees
230.7 Description of services and list of fees, incorporation by
reference.
Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277.
Interprets and applies sec. 7, 70 Stat. 959; 15 U.S.C. 275a.
Source: 41 FR 8472, Feb. 27, 1976, unless otherwise noted.
15 CFR 200.115 Subpart A -- General Information
15 CFR 230.1 Introduction.
This part states the procedure for ordering Standard Reference
Materials (SRM's) issued by the National Institute of Standards &
Technology. SRM's are used to calibrate measurement systems, evaluate
measurement methods, or produce scientific data that can be referred to
a common base. NIST Special Publication 260, ''Catalog of NIST Standard
Reference Materials,'' lists and describes the SRM's issued by NIST. SP
260 is periodically revised to include new SRM's and eliminate those
that have been discontinued. Between editions of SP 260, supplements
are issued that list new or renewal SRM's not listed in SP 260. In
addition, these supplements list the fees charged for available SRM's.
(41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 230.2 Identification of Standard Reference Materials.
The SRM's are listed by category in SP 260 and by sequential number
in the supplements. The number uniquely identifies a particular SRM.
Renewals are indicated by the addition of a letter to the original
number. Thus, 11a is the first, 11b the second, and 11c the third
renewal of SRM 11, Basic Open-Hearth Steel, 0.2 percent carbon. In this
way, a particular number or number and letter always represent a
material of fixed or approximately fixed composition.
15 CFR 230.3 New Standard Reference Materials.
When new SRM's or renewals of old ones are issued, announcements are
made in SP 260, its supplement, and in scientific and trade journals.
15 CFR 230.3 Subpart B -- Purchase Procedure
15 CFR 230.4 Ordering.
Orders should be addressed to the Office of Standard Reference
Materials, National Institute of Standards & Technology, Washington, DC
20234. Orders should give the amount (number of units), catalog number
and name of the standard requested. For example: 1 each, SRM 11h,
Basic Open-Hearth Steel, 0.2 percent C. These materials are distributed
only in the units listed.
(41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 230.5 Terms and shipping.
(a) Prices are given in the SP 260 supplement. These prices are
subject to revision and orders will be billed for prices in effect at
the time of shipment. No discounts are given on purchases of SRM's.
(b) Payment need not accompany a purchase order. Payment is due
within 30 days of receipt of an invoice.
(c) SRM's are shipped in the most expeditious manner that complies
with transportation and postal laws and regulations.
15 CFR 230.6 Standard Reference Materials out of stock.
Orders for out-of-stock SRM's will be returned with information as to
future availability.
15 CFR 230.6 Subpart C -- Description of Services and List of Fees
15 CFR 230.7 Description of services and list of fees, incorporation by
reference.
(a) The text of NIST Special Publication 260, ''Catalog of NIST
Standard Reference Materials,'' and its supplement are hereby
incorporated by reference pursuant to 5 U.S.C. 552(a)(1) and 1 CFR Part
51.
(b) SP 260 describes the SRM's that are available and states the
procedure for ordering the materials. SP 260 is available at the
following places:
Superintendent of Documents, Government Printing Office, Washington,
DC 20402.
Office of Standard Reference Materials, National Institute of
Standards & Technology, Washington, DC 20234.
(c) Supplements are issued when needed to reflect additions,
deletions, and corrections to SP 260, and to list fees charged for the
SRM's. Supplements are available from the Office of Standard Reference
Materials, National Institute of Standards & Technology, Washington, DC
20234.
(41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 11,
1990)
15 CFR 230.7 SUBCHAPTER C -- TRANSCRIPT SERVICES -- (RESERVED)
15 CFR 230.7 SUBCHAPTER D -- STANDARDS FOR BARRELS
15 CFR 230.7 PART 240 -- BARRELS AND OTHER CONTAINERS FOR LIME
Sec.
240.1 Title of act.
240.2 Application.
240.3 Permissible sizes.
240.4 Definitions.
240.5 Required marking.
240.6 Tolerances.
Authority: Sec. 4, 39 Stat. 531; 15 U.S.C. 240.
Source: 13 FR 8372, Dec. 28, 1948, unless otherwise noted.
15 CFR 240.1 Title of act.
The act, ''Pub. L. 228, 64th Congress,'' approved August 23, 1916
(39 Stat. 530; 15 U.S.C. 237-242), entitled ''An Act to standardize
lime barrels,'' shall be known and referred to as the ''Standard
Lime-Barrel Act.''
15 CFR 240.2 Application.
The rules and regulations in this part are to be understood and
construed to apply to lime in barrels, or other containers packed, sold,
or offered for sale for shipment from any State or Territory or the
District of Columbia to any other State or Territory or the District of
Columbia; and to lime in containers of less capacity than the standard
small barrel sold in interstate or foreign commerce; and to lime
imported in barrels from a foreign country and sold or offered for sale;
also to lime not in barrels or containers of less capacity than the
standard small barrel, sold, charged for, or purported to be delivered
as a large or small barrel or a fractional part of said small barrel of
lime, from any State or Territory or the District of Columbia to any
other State or Territory or the District of Columbia.
15 CFR 240.3 Permissible sizes.
Lime in barrels shall be packed only in barrels containing 280 pounds
or 180 pounds, net weight. For the purposes of this section the word
''barrel'' is defined as a cylindrical or approximately cylindrical
vessel, cask or drum.
(Sec. 2, 39 Stat. 530; 15 U.S.C. 238)
15 CFR 240.4 Definitions.
(a) The term container of less capacity than the standard small
barrel, as mentioned in section 3 of the law and as used in the rules
and regulations in this part, is defined as any container not in barrel
form containing therein a net weight of lime of less than 180 pounds.
(b) The term label as used in the rules and regulations in this part
is defined as any printed, pictorial, or other matter upon the surface
of a barrel or other container of lime subject to the provisions of this
act, or upon cloth or paper or the like which is permanently affixed to
it by pasting or in a similar manner.
(c) The term tag is defined as a tough and strong strip of cloth or
paper or the like, bearing any printed, pictorial, or other matter,
which is loose at one end and which is secured to a container of lime
subject to the provisions of the act.
(Sec. 3, 39 Stat. 530; 15 U.S.C. 239)
15 CFR 240.5 Required marking.
(a) The lettering required upon barrels of lime by section 2 of the
law shall be as follows: The statement of net weight shall be in
boldface capital letters and figures at least 1 inch in height and not
expanded or condensed; it shall be clear, legible, and permanent, and
so placed with reference to the other lettering that it is conspicuous.
The name of the manufacturer of the lime and where manufactured, and, if
imported, the name of the country from which it is imported, shall be in
boldface letters at least one-half inch in height and not expanded or
condensed, and shall be clear, legible, conspicuous, and permanent.
None of these letters and figures shall be superimposed upon each other,
nor shall any other characters be superimposed upon the required
lettering or otherwise obscure it. All the above statements shall form
parts of the principal label.
(b) The information required upon containers of lime of less capacity
than the standard small barrel by section 3 of the law shall be included
in a label: Provided, however, That in order to allow the utilization
of second-hand or returnable bags made of cloth, burlap, or the like,
such information may be upon a tag firmly attached to the container in a
prominent and conspicuous position. In case a tag is used to give the
required information there must not be any label or another tag upon the
container which bears any statement having reference to lime, or any
statement of weight whatever, which is not identical with the
information upon the tag mentioned above; if a container is to be
utilized which bears any such inaccurate information upon a label, such
container shall be turned inside out or such information shall be
obliterated in so far as it is inaccurate by blotting out the letters or
figures; or if such inaccurate information is upon a tag, by removing
such tag.
(c) If the required lettering is upon a label, the statement of net
weight shall be in bold-face capital letters and figures at least
three-fourths inch in height and not expanded or condensed; it shall be
clear, legible, and permanent, and so placed with reference to the other
lettering that it is conspicuous. The word ''net'' shall form part of
the statement of weight. The name of the manufacturer of the lime and
the name of the brand, if any, under which it is sold, and, if imported,
the name of the country from which it is imported, shall be in bold face
letters at least one-half inch in height and not expanded or condensed,
and shall be clear, legible, conspicuous, and permanent. None of these
letters and figures shall be superimposed upon each other, nor shall any
other characters be superimposed upon the required lettering or
otherwise obscure it. All the above statements shall form parts of the
principal label.
(d) If the required lettering is upon a tag, the statement of net
weight shall be in bold-face capital letters and figures not less than
one-half the height of the largest letters or figures used upon such
tag: Provided, however, That in every case they shall be not less than
one-eighth inch in height (12-point capitals), and not expanded or
condensed. The word ''net'' shall form part of the statement of weight.
The statement shall be clear, legible, and permanent, and so placed
with reference to the other lettering that it is conspicuous. The name
of the manufacturer of the lime, and the name of the brand, if any,
under which it sold, and, if imported, the name of the country from
which it is imported, shall be in bold-face letters and figures not less
than one-eighth inch in height (12-point capitals), and not expanded or
condensed, and shall be clear, legible, conspicuous, and permanent.
None of these letters and figures shall be superimposed upon each other
nor shall any other characters be superimposed upon the required
lettering or otherwise obscure it. All the above statements shall be
included upon the same side of the tag.
(e) In case the lime is actually packed in barrels or in containers
of less capacity than the standard small barrel by some person other
than the manufacturer of the lime, the information mentioned above must
be given in the manner there described, and in addition there must be a
statement to this effect: ''Packed by ---------- ---------- '' (giving
the name and address of the packer). This statement shall be in letters
not smaller than is specified for the general statement required in the
case of barrels and containers of less capacity than the standard small
barrel, respectively (see paragraphs (a) and (b) of this section); it
shall not be obscured and shall form part of the principal label or be
upon the same side of the tag as in those cases provided.
(f) In the case of all lime sold in barrels, the actual place of
manufacture of the lime shall be stated on the barrel. In general, this
will be the name of the post office nearest or most accessible to the
plant. However, when the actual place of manufacture of the lime and
the offices of the company are separated but are within the boundaries
of the same county of a State, or when, though not within the boundaries
of the same county they are so close together that the post-office
address of the offices represents substantially and to all intents and
purposes the actual place of manufacture of the lime, then the
post-office address of the offices of the company will be sufficient:
Provided, however, That the address given shall always correctly show
the State in which the lime is actually manufactured.
(g) More than one place of manufacture of a manufacturer shall not be
shown on the same barrel unless the one at which the particular lime in
question is manufactured is pointed out.
(h) If the location of the home offices is stated and this is not the
place of manufacture within the meaning of the above definition, an
additional statement must be included to this effect: ''Manufactured at
---------- '' (giving the location of the plant).
(Secs. 2, 3, 39 Stat. 530; 15 U.S.C. 238, 239)
15 CFR 240.6 Tolerances.
(a) When lime is packed in barrels the tolerance to be allowed on the
large barrel or the small barrel of lime shall be 5 pounds in excess or
in deficiency on any individual barrel: Provided, however, That the
average error on 10 barrels of the same nominal weight and packed by the
same manufacturer shall in no case be greater than 2 pounds in excess or
in deficiency. In case all the barrels available are not weighed, those
which are weighed shall be selected at random.
(b) When lime is packed in containers of less capacity than the
standard small barrel, the tolerance to be allowed in excess or in
deficiency on individual containers of various weights, shall be the
values given in the column headed ''Tolerance on individual package,''
of the following table: Provided, however, That the average error on 10
containers of the same nominal weight and packed by the same
manufacturer shall in no case be greater than the values given in the
column headed ''Tolerance on average weight,'' of the following table.
In case all the containers available are not weighed, those which are
weighed shall be selected at random.
(c) When lime in bulk is sold, charged for, or purported to be
delivered as a definite number of large or small barrels, the tolerance
to be allowed in excess or in deficiency on such amounts of lime shall
be 15 pounds per 1,800 pounds (10 small barrels), or 25 pounds per 2,800
pounds (10 large barrels).
15 CFR 240.6 PART 241 -- BARRELS FOR FRUITS, VEGETABLES AND OTHER DRY
COMMODITIES, AND FOR CRANBERRIES
Sec.
241.1 Capacities.
241.2 Legal standard barrels.
241.3 Application of tolerance for ''distance between heads.''
241.4 Application of tolerance for ''diameter of head.''
241.5 Standard dimensions.
241.6 Classes of barrels for tolerance application.
241.7 Tolerances to be allowed.
Authority: Sec. 3, 38 Stat. 1187; 15 U.S.C. 236.
Source: 13 FR 8373, Dec. 28, 1948, unless otherwise noted.
Note: The rules and regulations in this part refer entirely to
individual barrels, and no separate tolerance has been placed on the
average content of a number of barrels taken at random from a shipment.
It is not believed that barrels can be so made as to take advantage of
the tolerances, and, of course, no attempt should be made to do this.
It is, therefore, expected that as many barrels will be above as below
the standard capacity.
15 CFR 241.1 Capacities.
(a) The capacities of the standard barrel for fruits, vegetables, and
other dry commodities, other than cranberries, and its subdivisions, are
as follows:
(b) The capacities of the standard cranberry barrel and its
subdivisions are as follows:
(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)
15 CFR 241.2 Legal standard barrels.
(a) Any barrel having the dimensions specified for a standard barrel
for fruits, vegetables, and other dry commodities, other than
cranberries, in section 1 of the standard-barrel law, or any barrel or a
subdivision thereof having the contents specified in section 1 of the
standard-barrel law and in 241.1(a) regardless of its form or
dimensions, is a legal standard barrel for fruits, vegetables, or other
dry commodities other than cranberries, or a legal subdivision thereof.
No other barrel or subdivision in barrel form is a legal container for
fruits, vegetables, or other dry commodities other than cranberries.
(b) Any barrel having the dimensions specified for a standard barrel
for cranberries in section 1 of the standard-barrel law, or any
subdivision thereof having the contents specified in 241.1(b),
regardless of its form or dimensions, is a legal standard barrel for
cranberries or a legal subdivision thereof. No other barrel or
subdivision in barrel form is a legal container for cranberries.
(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)
15 CFR 241.3 Application of tolerance for ''distance between heads.''
The tolerance established in this part for the dimension specified as
''distance between heads'' shall be applied as follows on the various
types of barrels in use:
(a) When a barrel or subdivision thereof has two heads, the tolerance
shall be applied to the distance between the inside surfaces of the
heads and perpendicular to them.
(b) When a barrel or subdivision thereof has but one head and a croze
ring or other means for the insertion of a head, such as an inside hoop,
etc., at the opposite end, the tolerance shall be applied to the
distance from the inside surface of the bottom head and perpendicular to
it to the inside edge of the croze ring, or to a point where the inside
surface of a head would come were such head inserted in the barrel.
(c) When a barrel or subdivision thereof has but one head and no
croze ring or other means for the insertion of a head, such as an inside
hoop, etc., at the opposite end, the tolerance shall be applied to the
distance from the inside surface of the bottom head and perpendicular to
it to a point 1 1/8 inches from the opposite end of the staves in the
case of a barrel or a 3/4 barrel, and to a point 1 inch or 7/8 inch from
the opposite end of the staves in the case of the 1/2 barrel and 1/3
barrel, respectively. When a barrel or subdivision thereof has been
manufactured with but one head and no croze ring or other means for the
insertion of a head at the opposite end, and it is desired to insert a
second head, the croze ring shall be so cut that the inside edge shall
not be more than 1 1/8 inches from the end of the staves in the case of
a barrel or 3/4 barrel or not more than 1 inch or 7/8 inch from the end
of the staves in the case of the 1/2 barrel and 1/3 barrel,
respectively, or the other means shall be so adjusted that the inside
surface of the head when inserted shall not exceed these distances from
the end of the staves.
15 CFR 241.4 Application of tolerance for ''diameter of head.''
(a) The tolerance established in this part for the dimension
specified as ''diameter of head'' shall be applied to the diameter of
the head over all, including the part which fits into the croze ring of
the completed barrel.
(b) The tolerance established in this part for the dimension
specified as ''effective diameter of head'' shall be applied as follows
on the various types of barrels and subdivisions in use;
(1) When a barrel or subdivision thereof has two heads, the tolerance
shall be applied to the mean of the average diameters from inside to
inside of staves at the inner edges of the heads.
(2) When a barrel or subdivision thereof has but one head and a croze
ring or other means for the insertion of a head at the opposite end, the
tolerance shall be applied to the mean of the average diameters, one
taken from inside to inside of staves at the inner edge of the head, the
other from inside to inside of staves at the inner edge of the croze
ring, or from inside to inside of staves at a point where the inside
surface of a head would come were such head inserted in the barrel.
(3) When a barrel or subdivision thereof has but one head and no
croze ring or other means for the insertion of a head at the opposite
end, the tolerance shall be applied to the mean of the average
diameters, one taken from inside to inside of staves at the inner edge
of the head, the other taken from inside to inside of staves at a point
1 1/8 inches from the end of the staves in the case of a barrel or 3/4
barrel, or at a point 1 inch or 7/8 inch from the end of the staves in
the case of a 1/2 barrel or 1/3 barrel, respectively.
(c) The standard allowance for depth of croze ring shall be 3/16
inch. Therefore, the standard ''effective diameter of head'' in the
case of the standard barrel is 16 3/4 inches and in the case of the
standard cranberry barrel is 15 7/8 inches.
15 CFR 241.5 Standard dimensions.
Whenever in the rules and regulations in this part the error on a
dimension is mentioned, this error shall be determined by taking the
difference between the actual measured dimension and the standard
dimension. The error is an error in excess and is to be preceded by a
plus sign when the measured dimension is greater than the standard
dimension. The error is an error in deficiency and is to be preceded by
a minus sign when the measured dimension is less than the standard
dimension.
(a) The standard dimensions of a barrel for fruits, vegetables, and
other dry commodities other than cranberries, and of a barrel for
cranberries, with which the actual measured dimensions are to be
compared, are as follows:
(b) In the case of all subdivisions of the barrel for fruits,
vegetables, and other dry commodities other than cranberries, and all
subdivisions of the barrel for cranberries, the following dimensions are
hereby standardized for the purpose of the application of tolerances,
and the actual measured dimensions are to be compared with these:
(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)
15 CFR 241.6 Classes of barrels for tolerance application.
For the purpose of the application of tolerances, barrels for fruits,
vegetables, and other dry commodities other than cranberries, are hereby
divided into two classes as follows:
(a) Class 1 shall include (1) all barrels no dimension of which is in
error by more than the following amounts, and (2) all barrels one or
more of the dimensions of which are in error by more than the following
amounts, and which in addition have no dimension in error in the
opposite direction:
(b) Class 2 shall include all barrels at least one dimension of which
is in error by more than the amounts given above, but which in addition
have at least one dimension in error in the opposite direction. (This
class includes all barrels mentioned in section 1 of the law in the
proviso reading: ''Provided, That any barrel of a different form having
a capacity of seven thousand and fifty-six cubic inches shall be a
standard barrel.'')
(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)
15 CFR 241.7 Tolerances to be allowed.
(a) The tolerances to be allowed in excess or in deficiency on the
dimensions of all barrels of Class 1 shall be as follows:
(1) If no dimension of a barrel of Class 1 is in error by more than
the tolerance given above, then the barrel is within the tolerance
allowed.
(2) If one or more of the dimensions of a barrel of Class 1 is in
error by more than the tolerance given above, then the barrel is not
within the tolerance allowed.
(b) The tolerance to be allowed in excess or in deficiency on all
barrels of Class 2 shall be 1 1/2 inches (1.5) inches, and this
tolerance is to be applied to the result obtained by the application of
the following rule:
(1) Having determined the errors of each dimension and given to each
its proper sign (see 241.4), add the errors on the effective diameter
of head and the distance between heads algebraically and multiply the
result by 1.67 (or 5/3). Then add this result to the error on the
circumference of bulge algebraically. If the result obtained is not
greater than the tolerance given above, then the barrel is within the
tolerance allowed; if the result is greater than this tolerance, then
the barrel is not within the tolerance allowed.
Note: To find the algebraic sum of a number of quantities having
different signs, first add all those having one sign; then add all
those having the opposite sign; then subtract the smaller sum from the
larger, giving this result the sign of the larger quantity.
(c) The tolerance to be allowed in excess or in deficiency on the
dimensions of all barrels for cranberries shall be as follows:
(1) If no dimension of a barrel for cranberries is in error by more
than the tolerance given above, then the barrel is within the tolerance
allowed.
(2) If one or more of the dimensions of a barrel for cranberries is
in error by more than the tolerance given above, then the barrel is not
within the tolerance allowed.
(d) The tolerances to be allowed in excess or in deficiency on all
subdivisions of the standard barrel for fruits, vegetables, and other
dry commodities other than cranberries, and on all subdivisions of the
standard barrel for cranberries, shall be the values given in the
following table, and these tolerances are to be applied to the result
obtained by the application of the following rule:
(1) Having determined the errors on each dimension and given to each
its proper sign (see 241.5), add the errors on the effective diameter
of head and the distance between heads algebraically and multiply the
result by 1.67 (or 5/3). Then add this result to the error on the
circumference of bulge algebraically. If the result obtained is not
greater than the tolerance given in the following table for the proper
subdivision, then the barrel is within the tolerance allowed; if the
result is greater than this tolerance, then the barrel is not within the
tolerance allowed.
15 CFR 241.7 SUBCHAPTER E -- FELLOWSHIPS AND RESEARCH ASSOCIATES
15 CFR 241.7 PART 255 -- FELLOWSHIPS IN LABORATORY STANDARDIZATION AND
TESTING FOR QUALIFIED CITIZENS OF OTHER AMERICAN REPUBLICS
Sec.
255.1 Type of fellowships.
255.2 Qualifications.
255.3 Award of fellowships.
255.4 Allowances and expenses.
255.5 Progress reports.
255.6 Duration of fellowships.
255.7 Official notification.
Authority: R.S. 161; sec. 1, 53 Stat. 1290; 22 U.S.C. 501.
Source: 13 FR 8374, Dec. 28, 1948, unless otherwise noted.
15 CFR 255.1 Type of fellowships.
Fellowships shall be of the combined intern-training and
training-in-research type, and may include any or all of the following
courses:
(a) Orientation courses consisting of lectures and conferences at the
National Institute of Standards & Technology pertaining to laboratory
standardization and testing.
(b) Practical laboratory training in various branches of physics,
chemistry, and engineering research, under the direction of the National
Institute of Standards & Technology, which will include the usual
subdivisions of physics (weights and measures, heat, optics, mechanics,
atomic physics, electrical measurements and radio) and also technologic
applications in research and testing on metals, rubber, leather, paper,
textiles, plastics, and clay and silicate products.
(c) Observation and study in such other laboratories within the
continental United States as may be selected by the Director of the
National Institute of Standards & Technology.
(d) Courses of instruction or research assignments supplementing the
practical laboratory training, in universities or colleges selected by
the Director of the National Institute of Standards & Technology.
(13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 255.2 Qualifications.
Each applicant selected for a fellowship shall be:
(a) A citizen of an American republic other than the United States;
(b) In possession of a certificate of medical examination issued by a
licensed physician within 60 days of the date of application, describing
the applicant's physical condition and stating that he is free from any
communicable disease, physical deformity or disability that would
interfere with the proper pursuit of training, research, or any other
activity or work incident to the fellowship;
(c) Able to speak, read, write and understand the English language;
(d) Of good moral character and possessing intellectual ability and
suitable personal qualities; and
(e) In possession of acceptable evidence that he has successfully
completed the equivalent of a four-year university course in a
recognized university, college or other institution of learning, with
some training or experience in the field of activity which he desires to
pursue. Equivalent experience may be substituted for the university
training in the case of candidates who are otherwise specially well
qualified.
15 CFR 255.3 Award of fellowships.
Fellowships shall be awarded by the Director of the National
Institute of Standards & Technology, with the approval of the Secretary
of Commerce and the Secretary of State, or the duly authorized
representative of the Secretary of State. Applications shall be
transmitted to the Secretary of State by the government of the American
republic of which the applicant is a citizen through the American
diplomatic mission accredited to that government.
(13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18,
1990)
15 CFR 255.4 Allowances and expenses.
Allowances and expenses shall be as provided in State Department
regulations given in 22 CFR Part 61, and as provided in Department of
Commerce Administrative Order No. 202-3.1 014
0141Not filed with the Office of the Federal Register.
15 CFR 255.5 Progress reports.
Applicants awarded fellowships under the regulations in this part
shall submit written reports of progress in training and research at
such intervals as the Director of the National Institute of Standards &
Technology may determine.
(13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 255.6 Duration of fellowships.
Fellowships may be awarded for periods of varying length, not
exceeding one 12-month period of actual training and research and may be
extended for not exceeding the same periods in the manner prescribed
under 255.3 and subject to the availability of appropriations.
Fellowships may be cancelled for cause by the Director of the National
Institute of Standards & Technology, with the approval of the Secretary
of Commerce and the Secretary of State, or the duly authorized
representative of the Secretary of State.
(13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 255.7 Official notification.
Each applicant selected by the Director of the National Institute of
Standards & Technology and approved by the Secretary of Commerce and the
Secretary of State, or the duly authorized representative of the
Secretary of State, shall be notified of his award through diplomatic
channels. The notification shall state the duration and type of
fellowship, outline the program of training and research, and state the
allowances authorized: Provided, however, That the Director of the
National Institute of Standards & Technology may subsequently amend the
program and duration of the fellowship if in his opinion such action
would be in the interest of obtaining training and research better
suited to the needs and capabilities of the fellow than those prescribed
in the notification. The amount originally authorized for monthly
allowances and other expenses may also be amended, if necessary, with
the approval of the Secretary of Commerce and the Secretary of State, or
the duly authorized representative of the Secretary of State.
(13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 255.7 PART 256 -- RESEARCH ASSOCIATE PROGRAM
Sec.
256.1 Introduction.
256.2 The Research Associate Program.
256.3 Procedure.
256.4 Qualifications.
256.5 Duration of projects.
256.6 Information concerning the Research Associate Program.
Authority: 27 Stat. 395, 31 Stat. 1039; 20 U.S.C. 91.
Source: 32 FR 10252, July 12, 1967, unless otherwise noted.
Editorial Note: Nomenclature changes to part 256 appear at 55 FR
38316, Sept. 18, 1990.
15 CFR 256.1 Introduction.
This part states policies and procedures concerning the Research
Associate Program at the National Institute of Standards & Technology.
In the exercise of its functions as a major scientific agency of the
Federal Government, the National Institute of Standards & Technology may
make its facilities available to persons other than Bureau employees to
work with scientists and engineers in collaborative research aimed at
furthering the Nation's scientific, industrial, and economic growth.
Such cooperative programs may be sponsored by professional, technical,
or industrial organizations or associations. Such participants, when so
sponsored, are designated ''Research Associates''.
15 CFR 256.2 The Research Associate Program.
The Bureau provides its facilities, scientific competence, and
technical supervision for defined scientific or technical research by a
Research Associate when such research is complementary to and compatible
with scientific or technical research being performed or to be
undertaken by NIST under its statutory mission and authority. The
Sponsors pay the salaries of their Research Associates and
Sponsor-furnished technical assistants and secretaries of the Research
Associates, if any, their travel costs, and other related expenses.
Additionally, Sponsors reimburse NIST for the cost of research
equipment, services, or materials obtained for the Research Associate.
(32 FR 10252, July 12, 1967, as amended at 40 FR 50707, Oct. 31,
1975)
15 CFR 256.3 Procedure.
Arrangements for collaborative research by NIST with a Research
Associate generally begin through discussions or correspondence between
NIST scientists and representatives of potential sponsoring companies,
trade associations or professional organizations. These preliminary
steps are followed by the consummation of a Memorandum of Agreement
which is signed by NIST, the sponsoring organization and the Research
Associate. The agreement sets out the respective responsibilities and
obligations of all parties.
15 CFR 256.4 Qualifications.
Each candidate selected to serve as a Research Associate must be
determined to be scientifically qualified by the Sponsor and by the
NIST, and found by NIST to be of good moral character and to possess
suitable personal qualities.
15 CFR 256.5 Duration of projects.
The work of a Research Associate is generally conducted on a
full-time basis. Typically, Research Associates are in residence at
NIST for 6 to 18 months; longer-term programs may be carried on by a
succession of Research Associates. Agreements provide for cancellation
by any of the parties.
15 CFR 256.6 Information concerning the Research Associate Program.
Information concerning the Research Associate Program may be obtained
from the Industrial Liaison Officer, National Institute of Standards &
Technology, Washington, DC 20234.
(40 FR 50707, Oct. 31, 1975)
15 CFR 256.6 SUBCHAPTER F -- REGULATIONS GOVERNING TRAFFIC AND CONDUCT
15 CFR 256.6 PART 265 -- REGULATIONS GOVERNING TRAFFIC AND CONDUCT ON THE GROUNDS OF THE NATIONAL INSTITUTE OF STANDARDS & TECHNOLOGY, GAITHERSBURG, MARYLAND, AND BOULDER AND FORT COLLINS, COLORADO
15 CFR 256.6 Subpart A -- General
Sec.
265.1 Definitions.
265.2 Applicability.
265.3 Compliance with directions.
265.4 Making or giving of false reports.
265.5 Laws of Maryland and Colorado applicable.
15 CFR 256.6 Subpart B -- Traffic and Vehicular Regulations
265.11 Inspection of license and registration.
265.12 Speeding or reckless driving.
265.13 Emergency vehicles.
265.14 Signs.
265.15 Right-of-way in crosswalks.
265.16 Parking.
265.17 Parking permits.
265.18 Prohibited servicing of vehicles.
265.19 Unattended vehicles.
265.20 Towing of improperly parked vehicles.
265.21 Improper use of roads as thoroughfares.
265.22 Bicycle traffic.
15 CFR 256.6 Subpart C -- Buildings and Grounds
265.31 Closing the site.
265.32 Trespassing.
265.33 Preservation of property.
265.34 Conformity with posted signs.
265.35 Nuisances.
265.36 Intoxicating beverages.
265.37 Narcotics and other drugs.
265.38 Intoxication or other impairment of function.
265.39 Weapons and explosives.
265.40 Nondiscrimination.
265.41 Gambling.
265.42 Photography for advertising or commercial purposes;
advertising and soliciting.
265.43 Pets and other animals.
15 CFR 256.6 Subpart D -- Penalties
265.51 Penalties -- other laws.
Authority: Sec. 9, 31 Stat. 1450, as amended (15 U.S.C. 277).
Applies sec. 1, 72 Stat 1711, as amended, (15 U.S.C. 278e(b)).
Source: 39 FR 41170, Nov. 25, 1974, unless otherwise noted.
15 CFR 256.6 Subpart A -- General
15 CFR 265.1 Definitions.
As used in this part:
(a) Site means those grounds and facilities of the National Institute
of Standards & Technology, Department of Commerce located in Montgomery
County, Maryland, and in Boulder and Larimer Counties, Colorado, over
which the Federal Government has acquired concurrent jurisdiction in
accordance with appropriate authority.
(b) Uniformed guard means a designated employee appointed by the
Director for purposes of carrying out the authority of a U.S. Special
Policeman, as provided by 40 U.S.C. 318.
(c) Director means the Director of the National Institute of
Standards & Technology.
(39 FR 41170, Nov. 25, 1974, as amended at 41 FR 51787, Nov. 24,
1976; 55 FR 38316, Sept. 18, 1990)
15 CFR 265.2 Applicability.
The regulations in this part establish rules with respect to the
parking and operation of motor vehicles and other activities and conduct
on the site. These regulations are intended to supplement the rules and
regulations regarding conduct in Part O of Subtitle A of this title and
in other officially issued orders and regulations of the Department of
Commerce and the National Institute of Standards & Technology
(39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 265.3 Compliance with directions.
No person shall fail or refuse to comply with any lawful order or
direction of a uniformed guard in connection with the control or
regulation of traffic and parking or other conduct on the site.
15 CFR 265.4 Making or giving of false reports.
No person shall knowingly give any false or fictitious report or
information to any authorized person investigating an accident or
apparent violation of law or these regulations. Nothing in this section
shall affect the applicability of 18 U.S.C. 1001 regarding false,
fictitious or fraudulent statements or entries.
15 CFR 265.5 Laws of Maryland and Colorado applicable.
Unless otherwise specifically provided herein, the laws of the State
of Maryland and of the State of Colorado shall be applicable to the site
located within those respective States. The applicability of State laws
shall not, however, affect or abrogate any other Federal law or
regulation applicable under the circumstances.
15 CFR 265.5 Subpart B -- Traffic and Vehicular Regulations
15 CFR 265.11 Inspection of license and registration.
No person may operate any motor vehicle on the site unless he holds a
current operator's license, nor may he, if operating a motor vehicle on
the site, refuse to exhibit for inspection, upon request of a uniformed
guard, his operator's license or proof of registration of the vehicle
under his control at time of operation.
15 CFR 265.12 Speeding or reckless driving.
(a) No person shall drive a motor vehicle on the site at a speed
greater than or in a manner other than is reasonable and prudent for the
particular location, given the conditions of traffic, weather, and road
surface and having regard to the actual and potential hazards existing.
(b) Except when a special hazard exists that requires lower speed for
compliance with paragraph (a) of this section, the speed limit on the
site is 25 m.p.h., unless another speed limit has been duly posted, and
no person shall drive a motor vehicle on the site in excess of the speed
limit.
15 CFR 265.13 Emergency vehicles.
No person shall fail or refuse to yield the right-of-way to an
emergency vehicle when operating with siren or flashing lights.
15 CFR 265.14 Signs.
Every driver shall comply with all posted traffic and parking signs.
15 CFR 265.15 Right-of-way in crosswalks.
No person shall fail or refuse to yield the right-of-way to a
pedestrian or bicyclist crossing a street in a marked crosswalk.
15 CFR 265.16 Parking.
No person, unless otherwise authorized by a posted traffic sign or
directed by a uniformed guard, shall stand or park a motor vehicle:
(a) On a sidewalk;
(b) Within an intersection or within a crosswalk;
(c) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 feet
of a stop sign or traffic control device;
(d) At any place which would result in the vehicle being double
parked;
(e) At curbs painted yellow;
(f) In a direction facing on-coming traffic;
(g) In a manner which would obstruct traffic;
(h) In a parking space marked as not intended for his use;
(i) Where directed not to do so by a uniformed guard;
(j) Except in an area specifically designated for parking or
standing;
(k) Except within a single space marked for such purposes, when
parking or standing in an area with marked spaces;
(l) At any place in violation of any posted sign; or
(m) In excess of 24 hours, unless permission has been granted by the
Physical Security office.
15 CFR 265.17 Parking permits.
No person, except visitors, shall park a motor vehicle on the site
without having a valid parking permit displayed on such motor vehicle in
compliance with instructions of the issuing authority. Such permits may
be revoked by the issuing authority for violation of any of the
provisions of this part.
15 CFR 265.18 Prohibited servicing of vehicles.
No person shall make nonemergency repairs on privately owned vehicles
on the site.
15 CFR 265.19 Unattended vehicles.
No person shall leave a motor vehicle unattended on the site with the
engine running or a key in the ignition switch or the vehicle not
effectively braked.
15 CFR 265.20 Towing of improperly parked vehicles.
Any motor vehicle that is parked in violation of these regulations
may be towed away or otherwise moved if a determination is made by a
uniformed guard that it is a nuisance or hazard. A reasonable amount
for the moving service and for the storage of the vehicle, if any, may
be charged, and the vehicle is subject to a lien for that charge.
15 CFR 265.21 Improper use of roads as thoroughfares.
Except as otherwise provided herein, no person shall drive a motor
vehicle or bicycle onto the site for the sole purpose of using the roads
of the site as a thoroughfare between roads bordering the site. This
section shall not apply to bicyclists using officially approved bike
paths on the site.
15 CFR 265.22 Bicycle traffic.
No person shall ride a bicycle other than in a manner exercising due
caution for pedestrian and other traffic. No person shall ride a
bicycle on sidewalks or inside any building, nor shall any person park a
bicycle on sidewalks or inside any building nor in a roadway or parking
lot, provided, however, that these parking restrictions shall not apply
to bicycles parked at bicycle racks located in these areas.
15 CFR 265.22 Subpart C -- Buildings and Grounds
15 CFR 265.31 Closing the site.
As determined by the Director (Director, NIST Boulder Laboratories,
for sites in Colorado), the site may be closed to the public in
emergency situations and at such other times as may be necessary for the
orderly conduct of the Government's business. At such times no person
shall enter the site except authorized individuals, who may be required
to sign a register and display identification when requested by a
uniformed guard.
(39 FR 41170, Nov. 25, 1974, as amended at 56 FR 66969, Dec. 27,
1991)
15 CFR 265.32 Trespassing.
No person shall come onto the site other than in pursuance of
official government business or other properly authorized activities.
15 CFR 265.33 Preservation of property.
No person shall, without authorization, willfully destroy, damage, or
deface any building, sign, equipment, marker, or structure, tree,
flower, lawn, or other public property on the site.
15 CFR 265.34 Conformity with posted signs.
No person shall fail or refuse to comply with officially posted signs
of a prohibitory nature or with directions of a uniformed guard.
15 CFR 265.35 Nuisances.
(a) No person shall willfully disrupt the conduct of official
business on the site, or engage in disorderly conduct; nor shall any
person unreasonably obstruct the usual use of entrances, foyers,
lobbies, corridors, offices, elevators, stairways, parking lots,
sidewalks, or roads.
(b) No person shall litter or dispose of rubbish except in a
receptacle provided for that purpose; nor shall any person throw
articles of any kind from a building or from a motor vehicle or bicycle.
15 CFR 265.36 Intoxicating beverages.
Except as expressly authorized by the Director, the consumption or
use on the site of intoxicating beverages is prohibited.
15 CFR 265.37 Narcotics and other drugs.
The possession, sale, consumption, or use on the site of narcotic or
other drugs illegal under the laws of the State in which the particular
site is situated is prohibited. The provisions of this section are not
intended to preclude the applicability of any State or local laws and
regulations with respect to the possession, sale, consumption, or use of
narcotic or other drugs.
15 CFR 265.38 Intoxication or other impairment of function.
No person shall enter or remain on the site while noticeably impaired
by the use of intoxicating beverages or narcotics or other drugs, and
any such person found on the site in such a state of impairment may be
removed from the site.
15 CFR 265.39 Weapons and explosives.
Except in connection with the conduct of official business on the
site, no person other than uniformed guards specifically authorized, or
other Federal, State, or local law enforcement officials so authorized,
shall carry, transport, or otherwise possess on the site, firearms
whether loaded or not, other dangerous or deadly weapons or materials,
or explosives, either openly or concealed, without the written
permission of the Director or his designee.
15 CFR 265.40 Nondiscrimination.
No person shall discriminate against any other person because of
race, creed, color, sex, or national origin, in furnishing, or by
refusing to furnish to such person the use of any facility of a public
nature, including all services, privileges, accommodations, and
activities provided thereby on the site.
15 CFR 265.41 Gambling.
No person shall participate on the site in games for money or other
property, or in the operation of gambling devices, the conduct of
lotteries or pools, or in the selling or purchasing of numbers tickets,
or the taking or placing of bets.
15 CFR 265.42 Photography for advertising or commercial purposes;
advertising and soliciting.
(a) Except as otherwise provided herein or where security regulations
would preclude, photographs may be taken in entrances, lobbies, foyers,
corridors, and auditoriums without prior approval. Photography for
advertising and commercial purposes may be conducted only with the
written permission of the Chief, Public Affairs Division of the National
Institute of Standards and Technology (Public Affairs Officer for
Boulder for sites in Colorado.) provided, however, that this shall not
apply to photography for purposes of civic promotion.
(b) Commercial advertisements and other material which are not
directly pertinent or applicable to NIST employees but which
nevertheless may be of interest or benefit to them may, with the
approval of the Director of Administration (Executive Office, Boulder,
for sites in Colorado), be placed in an appropriate location and made
available to employees who visit that area. Except with approval as
provided herein, no person shall distribute commercial advertising
literature or engage in commercial soliciting on the site.
(39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18,
1990; 56 FR 66969, Dec. 27, 1991)
15 CFR 265.43 Pets and other animals.
Except in connection with the conduct of official business on the
site or with the approval of the Associate Director for Administration
(Executive Officer, IBS/Boulder, for sites in Colorado), no person shall
bring upon the site any cat, dog, or other animal, provided, however,
that blind persons may have the use of seeing eye dogs.
15 CFR 265.43 Subpart D -- Penalties
15 CFR 265.51 Penalties -- other laws.
Except with respect to the laws of the State of Maryland and the
State of Colorado assimilated by 265.5 or otherwise, whoever shall be
found guilty of violating these regulations is subject to a fine of not
more than $50 or imprisonment of not more than 30 days, or both (40
U.S.C. 318c). Except as expressly provided in this part, nothing
contained in these regulations shall be construed to abrogate any other
Federal laws or regulations, or any State and local laws and regulations
applicable to the area in which the site is situated.
15 CFR 265.51 SUBCHAPTER G -- INVENTION EVALUATION PROCEDURES
15 CFR 265.51 PART 270 -- PROCEDURES FOR THE EVALUATION OF
ENERGY-RELATED INVENTIONS
Sec.
270.0 Purpose.
270.1 Definitions.
270.2 Submission of invention disclosures.
270.3 Energy-related invention evaluation request form.
270.4 Statement of nondisclosure forms.
270.5 Nondisclosure provisions for evaluation contracts.
270.6 Conflict of interest.
270.7 Restricted access to invention disclosures.
270.8 Review and evaluation.
270.9 Recommendations on invention disclosures.
Authority: Sec. 14, Pub. L. 93-577, dated December 31, 1974, 88
Stat. 1894 (42 U.S.C. 5913).
Source: 41 FR 43396, Oct. 1, 1976, unless otherwise noted.
15 CFR 270.0 Purpose.
(a) The Federal Nonnuclear Energy Research and Development Act of
1974 (Pub. L. 93-577, dated December 31, 1974 (42 U.S.C. 5901, et
seq.)), hereinafter referred to as the Act, establishes a comprehensive,
national program for research and development of all potentially
beneficial energy sources and utilization technologies. This program is
to be carried out by the Administrator of the Energy Research and
Development Administration (ERDA).
(b) Section 14 of the Act directs the National Institute of Standards
& Technology (NIST) to ''give particular attention to the evaluation of
all promising energy-related inventions, particularly those submitted by
individual inventors and small companies for the purpose of obtaining
direct grants from the Administrator'' of ERDA. The purpose of this
part is to promulgate regulations in the implementation of section 14 of
the Act.
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.1 Definitions.
As used in this part:
(a) ''Office'' means the Office of Energy-Related Inventions.
(b) ''Invention'' means any invention which may be used to conserve
energy, provide a new source of energy or improve a method of harnessing
known or discovered energy supplies, except nuclear energy.
(c) ''Invention disclosure'' means a written description of an
invention.
(d) ''Department'' means the United States Department of Commerce.
15 CFR 270.2 Submission of invention disclosures.
(a) Any person may submit an invention disclosure to the Office for
evaluation of the invention described therein for the ultimate purpose
of obtaining support from ERDA. The invention disclosure shall be
accompanied by a completed Energy-Related Invention Evaluation Request
form, which is specified in 270.3.
(b) All correspondence related to an invention disclosure or
inquiries related to section 14 of the Act should be addressed to:
Office of Energy-Related Inventions, National Institute of Standards
& Technology, Washington, D.C. 20234
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.3 Energy-related invention evaluation request form.
(a) The Office shall furnish an Energy-Related Invention Evaluation
Request form to any person who desires to submit an invention disclosure
for the purpose set out in 270.2. The form shall include, either
directly or by reference:
(1) A statement of policy;
(2) A description of the invention evaluation program of the Office;
(3) An outline of the information required of the submitter, which
shall include an invention disclosure in the English language, with
drawings where appropriate, sufficiently complete in technical detail to
convey a clear understanding of the purpose, construction, and operation
of the invention described in such disclosure;
(4) A brief description of the safeguards to be taken in handling
invention disclosures to protect the proprietary rights of persons
submitting such disclosures;
(5) A requirement that the submitter indicate either that the
following or similar legend has been applied to the invention
disclosure, or that the following legend should be applied to the
invention disclosure by the Office, or that such legend in the judgment
of the submitter is not required: ''This invention disclosure contains
information which is (i) a trade secret or (ii) commercial or financial
information that is privileged or confidential.'';
(6) A Memorandum of Understanding setting forth the conditions under
which NIST shall accept an invention disclosure for evaluation of the
invention described therein, and including, directly or by reference,
the provisions of 270.5; such Memorandum shall be signed by the person
who submits the invention disclosure as a prerequisite to the evaluation
of the invention described in such disclosure; and
(7) Other information deemed relevant.
(b) Where the Government is entitled to the entire right, title, and
interest in an invention and such invention is described in an invention
disclosure to be submitted for the purpose set out in 270.2 of this
part, the Office shall furnish to the submitter an Energy-Related
Invention Evaluation Request form which shall include paragraphs (a)(1),
(2), and (3) of this section and which may omit paragraphs (a)(4), (5),
and (6) thereof.
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.4 Statement of nondisclosure forms.
The Office shall require that those Government employees, who
administer or perform the evaluations of inventions described in
invention disclosures, sign Statement of Nondisclosure forms. The form
shall include either directly or by reference:
(a) A brief description of the safeguards to be taken in handling the
invention disclosures to protect the proprietary rights of persons
submitting such disclosures;
(b) When the person, who is to sign the Statement of Nondisclosure
form is a Department employee, a statement indicating that such person
has read and understood 15 CFR 0.735-15(b), which prohibits the use of
inside information by a Department employee, and 15 CFR 0.735-15(d),
which prohibits the disclosure of restricted information; and
(c) When the person, who is to sign the Statement of Nondisclosure
form, is a government officer or employee, a statement indicating that
such person has read and understood 18 U.S.C. 1905, which provides for
criminal penalties which may be imposed on a government officer or
employee for the unauthorized disclosure of confidential information,
including trade secrets, which comes to such person in the course of his
employment or official duties.
15 CFR 270.5 Nondisclosure provisions for evaluation contracts.
(a) In any contract awarded by the Department or NIST for the
evaluation of an invention described in an invention disclosure or for
any other task for which a contractor receives an invention disclosure
in confidence, the contractor shall agree in writing to comply with the
following safeguards:
(1) To establish and maintain procedures for holding such invention
disclosure in confidence;
(2) To provide the contracting officer with a signed statement from
each person to whom an invention disclosure will be shown that any
information which is received in confidence shall be kept in confidence
by such person to the extent of the nondisclosure provisions contained
in such contract; such statement shall be subject to the approval of
the contracting officer;
(3) To furnish the contracting officer a description of the
procedures specified in paragraph (a)(1) of this section so that their
effectiveness may be determined and evaluated, and to make any
reasonable changes in such procedures as may be requested by the
contracting officer to increase their effectiveness;
(4) To use the information in the invention disclosure only in the
performance of the work called for in the contract;
(5) Not to disclose information in the invention disclosure to anyone
except as provided in the contract, without the prior written
authorization of the contracting officer;
(6) Not to make, have made, or permit to be made any copies of the
invention disclosure, or any portion thereof, except those copies
necessary for the performance of the work called for in the contract;
any proprietary legend appearing on the invention disclosure shall be
reproduced on each such copy or portion thereof; and
(7) To mark each report called for in the contract with a legend,
provided by the Office, which shall specify the restrictions on
distribution of the report and, when appropriate, the property rights in
the information in the report.
(b) In the event the contract contemplates engaging the services of
an outside consultant to perform the work called for in the contract,
the contractor shall prior to disclosing the invention disclosure to the
consultant, bind the consultant to a written agreement which shall
contain all the nondisclosure provisions in the contract. The
contractor shall provide the contracting officer, or a person designated
in the contract, with a copy of such agreement.
(c) When a contract for the evaluation of an invention described in
an invention disclosure requires the performance of commercial
feasibility studies, the contract shall provide that the contractor,
notwithstanding the provisions of paragraph (a) of this section, may, in
performing an analysis of the market potential of the invention,
disclose to a third party the class of systems, devices or methods to
which the invention belongs, and may disclose to such party in general
terms the results achieved by, and the characteristics of, the system,
device or method comprising the invention.
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.6 Conflict of interest.
Each contract, requiring access to invention disclosures, shall
provide that if, upon examination of an invention disclosure, the
contractor is aware that it has any financial interest in or any
relation with a third party which might affect the integrity and
impartiality of its performance of the work specified in the contract,
the contractor shall provide the contracting officer with a complete
written report of such interest or relation prior to undertaking the
work and shall not proceed with the work without the prior written
authorization of the contracting officer. The authorization of the
contracting officer is required to assure that the integrity and
impartiality of the contractor's performance of the work specified in
the contract shall not be affected by such financial interest or
relation.
15 CFR 270.7 Restricted access to invention disclosures.
(a) When an invention disclosure is not accompanied by a signed
Memorandum of Understanding, specified in 270.3(a)(6) of this part,
such disclosure (1) shall be handled for processing only, such as
recording, classifying, and safekeeping, or (2) may be returned to the
submitter without evaluation when the disclosure does not describe an
invention as defined in 270.1(b). During the processing, the
distribution of the invention disclosure shall be restricted to the
personnel in the Office who have been designated by the Chief of the
Office to carry out the processing functions called for in this
paragraph. Moreover, the invention disclosure shall not be processed
beyond the Office for any purpose prior to receipt of a signed
Memorandum of Understanding.
(b) When an invention disclosure is accompanied by a signed
Memorandum of Understanding, such disclosure may be released to any
person, who needs the information in the disclosure for administrative
purposes or for evaluation of the invention described in such
disclosure, and who has signed a Statement of Nondisclosure form
specified in 270.4, or who is authorized to receive the invention
disclosure pursuant to a contract with the Department or NIST.
(c) In no event shall an invention disclosure be released to any
person not specified in paragraph (a) or (b) of this section without the
prior written authorization of the NIST Legal Advisor, provided,
however, that the Chief of the Office may authorize the release of an
invention disclosure to any person when (1) the invention described in
such disclosure has been set forth in a written publication available to
the public, or (2) the submitter has stated in writing that a
proprietary legend on the invention disclosure is not required.
(d) Notwithstanding the provisions of paragraphs (b) and (c) of this
section and 270.8, an invention described in an invention disclosure,
in which the Government is entitled to the entire right, title, and
interest, may be reviewed and evaluated without receiving a signed
Memorandum of Understanding specified in 270.3(a)(6) or the signed
statement specified in 270.5(a)(2).
(e) After the Office has completed its review and evaluation of an
invention disclosure pursuant to 270.8, the Office, with the prior
written permission of the person who submitted such disclosure, may
forward the disclosure to ERDA:
(1) Without regard to the provisions of pargaraphs (b) and (c) of
this section; and
(2) With the understanding between the Office and ERDA that such
disclosure shall be handled in accordance with the procedures
established by ERDA for the protection of proprietary information. When
such permission is not obtained by the Office, the Office may
nevertheless forward such invention disclosure to ERDA subject to the
provisions of paragraphs (b) and (c) of this section.
(f) Notwithstanding the provisions of any section of this part, the
disclosure of any information in or related to an invention disclosure
shall be subject to:
(1) The provisions of the Freedom of Information Act 5 U.S.C. 552,
and the Department's regulations published in the implementation
thereof;
(2) The provisions of any statute which requires the submission of
information to a standing committee of the Congress, including each
subcommittee thereof; and
(3) Release to a third party pursuant to an order of a court of
competent jurisdiction.
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.8 Review and evaluation.
(a) When an invention disclosure is accompanied by the signed
Memorandum of Understanding specified in 270.3(a)(6), such disclosure
shall receive a preliminary review to determine whether it is complete
and sufficient and describes an invention which may be a potentially
beneficial source of energy subject to utilization technologies.
(b) After completion of a preliminary review, the Office may
undertake or have undertaken an evaluation of the invention in an
invention disclosure which shall include:
(1) An assessment of the validity of the technical assumptions and
statements which are made in the invention disclosure concerning the
invention;
(2) An assessment of the potential of the invention for energy
conservation, utilization, and production;
(3) An assessment of the potential of the commercial utilization of
the invention; and
(4) A recommendation on whether ERDA should support the invention.
(c) Invention disclosures submitted to the Office normally shall be
evaluated in the order in which they are received except in those cases
where the Chief of the Office determines that the advancement of an
invention disclosure would improve the effectiveness of the program
established by section 14 of the Act.
(d) When a preliminary review and/or evaluation of an invention
requires a capability which is not available at NIST, the Office may
enter into a contract for the performance of such review and/or
evaluation with a qualified individual or firm in the private sector or
into an agreement with another Federal Government department or agency
for the same purpose.
(41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18,
1990)
15 CFR 270.9 Recommendations on invention disclosures.
(a) Based on the review or evaluation of an invention pursuant to
270.8, the Office shall decide whether or not to recommend the invention
to ERDA for support and shall inform ERDA and the person who submitted
the invention disclosure of such decision.
(b) Subject to the provisions of 270.7(e):
(1) Where the Office recommends an invention to ERDA for support, the
Office shall furnish a report to ERDA which documents the basis for the
recommendation; and
(2) Where the Office decides not to recommend an invention to ERDA, a
report which documents the basis of its decision shall be forwarded to
ERDA upon its request.
15 CFR 270.9 SUBCHAPTER H -- REGULATIONS GOVERNING APPEARANCE OF NIST EMPLOYEES IN PRIVATE LITIGATION
15 CFR 270.9 PART 275 -- POLICIES AND PROCEDURES GOVERNING THE
APPEARANCE OF NIST EMPLOYEES AS WITNESSES IN PRIVATE LITIGATION
Sec.
275.1 Purpose and policy.
275.2 Testimony or production of records by NIST employees in legal
proceedings not involving the United States as a named party.
275.3 Certification of records.
275.4 Request or order for testimony or production of records.
275.5 Response to request or order for testimony or production of
records.
Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277.
Source: 44 FR 17481, Mar. 22, 1979, unless otherwise noted.
Editorial Note: Nomenclature changes to part 275 appear at 55 FR
38316, Sept. 18, 1990.
15 CFR 275.1 Purpose and policy.
(a) This part prescribes the policies and procedures of the National
Institute of Standards & Technology (NIST) with respect to testimony by
NIST employees and production of data, information and records, in legal
proceedings not involving the United States as a named party.
(b) NIST is the Federal agency responsible for the custody,
maintenance, and development of the national standards of measurement,
and the impartial development and application of measurement
technologies upon which the flow of interstate and foreign commerce must
necessarily depend (15 U.S.C. 272).
(c) To carry out its statutory mission effectively, NIST must apply
the expertise of the many scientific and technical experts it employs
exclusively to the performance of its official duties, including
providing scientific and technical advisory services to other Federal
agencies. It is essential that NIST also maintain a policy of strict
impartiality among private litigants, and that it ensure that its
employees adhere to the responsibilities for which they were employed.
To these ends, it is the policy of NIST that its employees shall not
testify nor otherwise appear in legal proceedings not involving the
United States or its officers or employees in their official capacity as
a named party in order to produce data, information, or records which
concern matters related to official duties of NIST employees or the
functions of NIST.
(d) For purposes of this part, ''legal proceeding'' includes any
civil or criminal proceeding before a court of law, administrative board
or commission, hearing officer, or other body conducting a legal or
administrative proceeding, or any discovery proceeding in support
thereof, including depositions and interrogatories.
15 CFR 275.2 Testimony or production of records by NIST employees in
legal proceedings not involving the United States as a named party.
No NIST employee shall give testimony in any legal proceeding in
which the United States Government or an agency or department in the
Executive Branch is not a named party, concerning official duties of an
NIST employee or any function of NIST, nor produce any data,
information, or record created or acquired by NIST as a result of the
discharge of its official duties, without the prior written
authorization of the NIST Legal Adviser.
15 CFR 275.3 Certification of records.
Certified copies of NIST records will be provided upon request and
payment of the applicable fees. Requests for certification should be
addressed to the NIST Legal Adviser, National Institute of Standards &
Technology, Washington, DC 20234. The applicable fees include charges
for certification and reproduction, the amounts of which are set out in
4.9(a) (3) and (5) of Title 15 of the CFR. Other reproduction costs and
postage fees, as appropriate, will also be borne by the requester.
15 CFR 275.4 Request or order for testimony or production of records.
(a) A request or order for testimony of, or the production of data,
information, or records by, an NIST employee in a legal proceeding not
involving the United States as a named party shall be addressed to the
NIST Legal Adviser, National Institute of Standards & Technology,
Washington, DC 20234. A request or order for testimony shall be
accompanied by an affidavit or, if that is not feasible, a statement
setting forth the title of the case, the forum, the party's interest in
the case, a recitation of the reasons for desiring and the intended use
of the testimony, a general summary of the testimony desired, and a
showing that (1) the desired testimony is not reasonably available from
other sources (including an explanation of such circumstances), and (2)
no NIST record in certified form provided under 275.3 could be
introduced in evidence in lieu of the testimony or other appearance
requested.
(b) Any employee of NIST who is served with a subpoena or other order
for or who receives a request for, testimony or the production of data,
information, or records shall immediately report the service or request
to the NIST Legal Adviser.
15 CFR 275.5 Response to request or order for testimony or production
of records.
(a) Except for the production of payroll, leave, or similar
administrative records that may be involved in legal proceedings
involving an employee of NIST in other than that employee's official
capacity, testimony or the production of data, information, or records
in a legal proceeding not involving the United States shall be
authorized only as a rare exception. Such exception shall be based only
upon a determination by the NIST Legal Adviser that NIST has a
significant interest in the legal proceeding and that the outcome may
affect the implementation of present policies, or where other
circumstances or conditions (including the showing required in paragraph
(a) of 275.4) make it necessary to provide the data, information, or
records in the public interest.
(b) When an NIST employee receives a request or order for testimony
or the production of data, information, or records, the NIST Legal
Adviser shall determine whether such request or order is legally binding
on the employee and whether compliance with such request or order is
authorized. Upon making such determination, the NIST Legal Adviser
shall accordingly instruct the employee who received such request or
order.
(c) Unless otherwise expressly authorized by the NIST Legal Adviser,
an employee who is requested or ordered to testify or produce data,
information, or records in a legal proceeding not involving the United
States as a named party shall respectfully decline to comply on the
ground of the prohibition against compliance contained in this part. If
a subpoena or other order is involved, the employee shall decline by
appearing at the time and place specified (unless the NIST Legal Adviser
determines, in consultation with the party seeking the testimony or
other appearance, or the authority conducting the legal proceeding, as
appropriate, that a written submission will be sufficient), accompanied
by a representative of the Office of the NIST Legal Adviser, the United
States Attorney's Office, or the Department of Justice, as appropriate,
and explaining to the authority conducting the legal proceeding that
this part prohibits the employee from complying.
(d) If an employee who follows the procedure in paragraph (c) of this
section is ordered to show cause why he or she should not be cited for
contempt, the NIST Legal Adviser shall request the Department of Justice
to represent the employee.
(e) If the NIST Legal Adviser authorizes the testimony of an NIST
employee, the Legal Adviser may arrange for the taking of the testimony
by methods that are less disruptive of official activities of the
employee than providing testimony in court or at a hearing. Testimony
may, for example, be provided by affidavits, answers to interrogatories,
written depositions, or depositions transcribed, recorded, or preserved
by any other method allowable by law. Costs of providing testimony,
including transcripts, one copy of which will be provided to the NIST
Legal Adviser, will be borne by the party requesting the testimony.
Such costs shall also include reimbursing NIST for the usual and
ordinary expenses attendant upon the employee's absence from his or her
official duties in connection with the legal proceeding, including the
employee's salary and applicable overhead charges and any necessary
travel expenses.
(44 FR 17481, Mar. 22, 1979; 44 FR 19383, Apr. 3, 1979)
15 CFR 275.5 SUBCHAPTERS I -- J (RESERVED)
15 CFR 275.5 SUBCHAPTER K -- ADVANCED TECHNOLOGY PROGRAM PROCEDURES
15 CFR 275.5 Pt. 290
15 CFR 275.5 PART 290 -- REGIONAL CENTERS FOR THE TRANSFER OF
MANUFACTURING TECHNOLOGY
Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Program description.
290.4 Terms and schedule of financial assistance.
290.5 Basic proposal qualifications.
290.6 Proposal evaluation and selection criteria.
290.7 Proposal selection process.
290.8 Reviews of centers.
290.9 Intellectual property rights.
Authority: 15 U.S.C. 278k.
Source: 55 FR 38275, Sept. 17, 1990, unless otherwise noted.
15 CFR 290.1 Purpose.
This rule provides policy for a program to establish Regional Centers
for the Transfer of Manufacturing Technology as well as the prescribed
policies and procedures to insure the fair, equitable and uniform
treatment of proposals for assistance. In addition, the rule provides
general guidelines for the management of the program by the National
Institute of Standards and Technology, as well as criteria for the
evaluation of the Centers, throughout the lifecycle of financial
assistance to the Centers by the National Institute of Standards and
Technology.
15 CFR 290.2 Definitions.
(a) The phrase advanced manufacturing technology refers to new
technologies which have recently been developed, or are currently under
development, for use in product or part design, fabrication, assembly,
quality control, or improving production efficiency.
(b) The term Center or Regional Center means a NIST-established
Regional Center for the Transfer of Manufacturing Technology described
under these procedures.
(c) The term operating award means a cooperative agreement which
provides funding and technical assistance to a Center for purposes set
forth in 290.3 of these procedures.
(d) The term Director means the Director of the National Institute of
Standards and Technology.
(e) The term NIST means the National Institute of Standards and
Technology, U.S. Department of Commerce.
(f) The term Program or ''Centers Program'' means the NIST program
for establishment of, support for, and cooperative interaction with
Regional Centers for the Transfer of Manufacturing Technology.
(g) The term qualified proposal means a proposal submitted by a
nonprofit organization which meets the basic requirements set forth in
290.5 of these procedures.
(h) The term Secretary means the Secretary of Commerce.
(i) The term target firm means those firms best able to absorb
advanced manufacturing technologies and techniques, especially those
developed at NIST, and which are already well prepared in an
operational, management and financial sensse to improve the levels of
technology they employ.
15 CFR 290.3 Program description.
(a) The Secretary, acting through the Director, shall provide
technical and financial assistance for the creation and support of
Regional Centers for the Transfer of Manufacturing Technology. Each
Center shall be affiliated with a U.S.-based nonprofit institution or
organization which has submitted a qualified proposal for a Center
Operating Award under these procedures. Support may be provided for a
period not to exceed six years. The Centers work with industry,
universities, nonprofit economic development organizations and state
governments to transfer advanced manufacturing technologies, processes,
and methods as defined in 290.2 to small and medium sized firms. These
technology transfer efforts focus on the continuous and incremental
improvement of the target firms. The advanced manufacturing technology
which is the focus of the Centers is the subject of research in NIST's
Automated Manufacturing Research Facility (AMRF). The core of AMRF
research has principally been applied in discrete part manufacturing,
including electronics, composites, plastics, and metal parts fabrication
and assembly. Centers will be afforded the opportunity for interaction
with the AMRF and will be given access to reasearch projects and results
to strengthen their technology transfer. Where elements of a solution
are available from an existing source, they should be employed. Where
private-sector consultants who can meet the needs of a small- or
medium-sized manufacturer are available, they should handle the task.
Each Center should bring to bear the technology expertise described in
290.3(d) to assist small- and medium-sized manufacturing firms in
adopting advanced manufacturing technology.
(b) Program objective. The objective of the NIST Manufacturing
Technology Centers is to enhance productivity and technological
performance in United States manufacturing. This will be accomplished
through:
(1) The transfer of manufacturing technology and techniques developed
at NIST to Centers and, through them, to manufacturing companies
throughout the United States;
(2) The participation of individuals from industry, universities,
State governments, other Federal agencies, and, when appropriate, NIST
in cooperative technology transfer activities;
(3) Efforts to make new manufacturing technology and processes usable
by United States-based small- and medium-sized companies;
(4) The active dissemination of scientific, engineering, technical,
and management information about manufacturing to industrial firms,
including small- and medium-sized manufacturing companies; and
(5) The utilization, when appropriate, of the expertise and
capability that exists in Federal laboratories other than NIST.
(c) Center Activities. The activities of the Centers shall include:
(1) The establishment of automated manufacturing systems and other
advanced production technologies based on research by NIST and other
Federal laboratories for the purpose of demonstrations and technology
transfer;
(2) The active transfer and dissemination of research findings and
Center expertise to a wide range of companies and enterprises,
particularly small- and medium-sized manufacturers; and
(3) Loans, on a selective, short-term basis, of items of advanced
manufacturing equipment to small manufacturing firms with less than 100
employees.
(d) Center Organization and Operation. Each Center will be organized
to transfer advanced manufacturing technology to small and medium sized
manufacturers located in its service region. Regional Centers will be
established and operated via cooperative agreements between NIST and the
award-receiving organizations. Individual awards shall be decided on
the basis of merit review, geographical diversity, and the availability
of funding.
(e) Leverage. The Centers program must concentrate on approaches
which can be applied to other companies, in other regions, or by other
organizations. The lessons learned in assisting a particular target
firm should be documented in order to facilitate the use of those
lessons by other target firms. A Center should build on unique
solutions developed for a single company to develop techniques of broad
applicability. It should seek wide implementation with well-developed
mechanisms for distribution of results. Leverage is the principle of
developing less resource-intensive methods of delivering technologies
(as when a Center staff person has the same impact on ten firms as was
formerly obtained with the resources used for one, or when a project
once done by the Center can be carried out for dozens of companies by
the private sector or a state or local organization.) Leverage does not
imply a larger non-federal funding match (that is, greater expenditure
of non-federal dollars for each federal dollar) but rather a greater
impact per dollar.
(f) Regional impact. A new Center should not begin by spreading its
resources too thinly over too large a geographic area. It should
concentrate first on establishing its structure, operating style, and
client base within a manageable service area.
15 CFR 290.4 Terms and schedule of financial assistance.
(a) NIST may provide financial support to any Center for a period not
to exceed six years, subject to the availability of funding and
continued satisfactory performance. Awards under this program shall be
subject to all Federal and Departmental regulations, policies, and
procedures applicable to Federal assistance awards. NIST may not
provide more than 50 percent of the capital and annual operating and
maintenance required to create and maintain such Center. Allowable
capital costs may be treated as an expense in the year expended or
obligated.
(b) NIST Contribution. The funds provided by NIST may be used for
capital and operating and maintenance expenses. Each Center will
operate on one-year, annually renewable cooperative agreements,
contingent upon successful completion of informal annual reviews.
Funding can not be provided after the sixth year of support. A formal
review of each Center will be conducted during its third year of
operation by an independent Merit Review Panel in accordance with 290.8
of these procedures. Centers will be required to demonstrate that they
will be self-sufficient by the end of six years of operation. The
amount of NIST investment in each Center will depend upon the particular
requirements, plans, and performance of the Center, as well as the
availability of NIST funds. NIST may support the budget of each Center
on a matching-funds basis not to exceed the Schedule of Financial
Assistance outlined in Table 1. The remaining portion of the Center's
funding shall be provided by the host organization.
(c) Host Contribution. The host organization may count as part of
its share:
(1) Dollar contributions from state, county, city, industrial, or
other sources;
(2) Revenue from licensing and royalties;
(3) Fees for services performed,
(4) In-kind contributions of full-time personnel,
(5) In-kind contribution of part-time personnel, equipment, software,
rental value of centrally located space (office and laboratory) and
other related contributions up to a maximum of 45 percent of the host's
annual share. Allowable capital expenditures may be applied in the
award year expended or in subsequent award years. These restrictions on
host contribution apply to all awards issued or extended after September
30, 1990.
15 CFR 290.5 Basic proposal qualifications.
(a) NIST shall designate each proposal which satisfies the
qualifications criteria below as ''qualified proposal'' and subject the
qualified proposals to a merit review. Applications which do not meet
the requirements of this section will not receive further consideration.
(1) Qualified Organizations. Any nonprofit institution, or group
thereof, or consortium of nonprofit institutions, including entities
which already exist or may be incorporated specifically to manage the
Center.
(2) Proposal Format. Proposals for Center Operating Awards shall:
(i) Be submitted with a Standard Form 424 to the above address;
(ii) Not exceed 25 typewritten pages in length for the basic proposal
document (which must include the information requirements of paragraph
(a)(3) of this section); it may be accompanied by additional appendices
of relevant supplementary attachments and tabular material. Basic
proposal documents which exceed 25 pages in length will not be qualified
for further review.
(3) Proposal Requirements. In order to be considered for a Center
Operating Award, proposals must contain:
(i) A plan for the allocation of intellectual property rights
associated with any invention or copyright which may result from the
involvement in the Center's technology transfer or research activities
consistent with the conditions of 290.9;
(ii) A statement which provides adequate assurances that the host
organization will contribute 50 percent or more of the proposed Center's
capital and annual operating and maintenance costs for the first three
years and an increasing share for each of the following three additional
years. Applicants should provide evidence that the proposed Center will
be self-supporting after six years.
(iii) A statement describing linkages to industry, government, and
educational organizations within its service region.
(iv) A statement defining the initial service region including a
statement of the constituency to be served and the level of service to
be provided, as well as outyear plans.
(v) A statement agreeing to focus the mission of the Center on
technology transfer activities and not to exclude companies based on
state boundaries.
(vi) A proposed plan for the annual evaluation of the success of the
Center by the Program, including appropriate criteria for consideration,
and weighting of those criteria.
(vii) A plan to focus the Center's technology emphasis on areas
consistent with NIST technology research programs and organizational
expertise.
(viii) A description of the planned Center sufficient to permit NIST
to evaluate the proposal in accordance with 290.6 of these procedures.
15 CFR 290.6 Proposal evaluation and selection criteria.
(a) In making a decision whether to provide financial support, NIST
shall review and evaluate all qualified proposals in accordance with the
following criteria, assigning equal weight to each of the four
categories.
(1) Identification of Target Firms in Proposed Region. Does the
proposal define an appropriate service region with a large enough
population of target firms of small- and medium-sized manufacturers
which the applicant understands and can serve, and which is not
presently served by an existing Center?
(i) Market Analysis. Demonstrated understanding of the service
region's manufacturing base, including business size, industry types,
product mix, and technology requirements.
(ii) Geographical Location. Physical size, concentration of
industry, and economic significance of the service region's
manufacturing base. Geographical diversity of Centers will be a factor
in evaluation of proposals; a proposal for a Center located near an
existing Center may be considered only if the proposal is unusually
strong and the population of manufacturers and the technology to be
addressed justify it.
(2) Technology Resources. Does the proposal assure strength in
technical personnel and programmatic resources, full-time staff,
facilities, equipment, and linkages to external sources of technology to
develop and transfer technologies related to NIST research results and
expertise in the technical areas noted in these procedures?
(3) Technology Delivery Mechanisms. Does the proposal clearly and
sharply define an effective methodology for delivering advanced
manufacturing technology to small- and medium-sized manufacturers?
(i) Linkages. Development of effective partnerships or linkages to
third parties such as industry, universities, nonprofit economic
organizations, and state governments who will amplify the Center's
technology delivery to reach a large number of clients in its service
region.
(ii) Program Leverage. Provision of an effective strategy to amplify
the Center's technology delivery approaches to achieve the proposed
objectives as described in 290.3(e).
(4) Management and Financial Plan. Does the proposal define a
management structure and assure management personnel to carry out
development and operation of an effective Center?
(i) Organizational Structure. Completeness and appropriateness of
the organizational structure, and its focus on the mission of the
Center. Assurance of full-time top management of the Center.
(ii) Program Management. Effectiveness of the planned methodology of
program management.
(iii) Internal Evaluation. Effectiveness of the planned continuous
internal evaluation of program activities.
(iv) Plans for Financial Matching. Demonstrated stability and
duration of the applicant's funding commitments as well as the
percentage of operating and capital costs guaranteed by the applicant.
Identification of matching fund sources and the general terms of the
funding commitments. Evidence of the applicant's ability to become
self-sustaining in six years.
(v) Budget. Suitability and focus of the applicant's detailed
one-year budget and six-year budget outline.
15 CFR 290.7 Proposal selection process.
Upon the availability of funding to establish Regional Centers, the
Director shall publish a notice in the Federal Register requesting
submission of proposals from interested organizations. Appliclants will
be given an established time frame, not less than 60 days from the
publication date of the notice, to prepare and submit a proposal. The
proposal evaluation and selection process will consist of four principal
phases: Proposal qualification; Proposal review and selection of
finalists; Finalist site visits; and, Award determination. Further
descriptions of these phases are provided in the following:
(a) Proposal qualification. All proposals will be reviewed by NIST
to assure compliance with 290.5 of these procedures. Proposals which
satisfy these requirements will be designated qualified proposals; all
others will be disqualified at this phase of the evaluation and
selection process.
(b) Proposal review and selection of finalists. The Director of NIST
will appoint an evaluation panel to review and evaluate all qualified
proposals in accordance with the criteria set forth in section 290.6 of
these procedures, assigning equal weight to each of the four categories.
From the qualified proposals, a group of finalists will be selected
based on this review.
(c) Finalist Site Visits. NIST representatives will visit each
finalist organization. Finalists will be reviewed and assigned numeric
scores using the criteria set forth in 290.6 of these procedures
assigning equal weight to each of the four categories. NIST may enter
into negotiations with the finalists concerning any aspect of their
proposal.
(d) Award Determination. The Director of NIST or his designee shall
select awardees for Center Operating Awards based upon the rank order of
applicants, the need to assure appropriate regional distribution, and
the availability of funds. Upon the final award decision, a
notification will be made to each of the proposing organizations.
15 CFR 290.8 Reviews of centers.
(a) Overview. Each Center will be reviewed at least annually, and at
the end of its third year of operation according to the procedures and
criteria set out below. There will be regular management interaction
with NIST and the other Centers for the purpose of evaluation and
program shaping. Centers are encouraged to try new approaches, must
evaluate their effectiveness, and abandon or adjust those which do not
have the desired impact.
(b) Annual Reviews of Centers. Centers will be reviewed annually as
part of the funding renewal process using the criteria set out in
290.8(d). The funding level at which a Center is renewed is contingent
upon a positive program evaluation and will depend upon the availability
of federal funds and on the Center's ability to obtain suitable match,
as well as on the budgetary requirements of its proposed program.
Centers must continue to demonstrate that they will be self-supporting
after six years.
(c) Third Year Review of Centers. Each host receiving a Center
Operating Award under these procedures shall be evaluated during its
third year of operation by a Merit Review Panel appointed by the
Secretary of Commerce. Each such Merit Review Panel shall be composed
of private experts, none of whom shall be connected with the involved
Center, and Federal officials. An official of NIST shall chair the
panel. Each Merit Review Panel shall measure the involved Center's
performance against the criteria set out in 290.8(d). The Secretary
shall not provide funding for the fourth through the sixth years of such
Center's operation unless the evaluation is positive on all grounds. As
a condition of receiving continuing funding, the Center must show
evidence at the third year review that they are making substantial
progress toward self-sufficiency. If the evaluation is positive and
funds are available, the Secretary of Commerce may provide continued
funding through the sixth year at declining levels, which are designed
to insure that the Center no longer needs financial support from NIST by
the seventh year. In no event shall funding for a Center be provided by
the NIST Manufacturing Technology Centers Program after the sixth year
of support.
(d) Criteria for Annual and Third Year Reviews. Centers will be
evaluated under the following criteria in each of the annual reviews, as
well as the third year review:
(1) The program objectives specified in 290.3(b) of these
procedures;
(2) Funds-matching performance;
(3) The extent to which the target firms have successfully
implemented recently developed or currently developed advanced
manufacturing technology and techniques transferred by the Center;
(4) The extent to which successes are properly documented and there
has been further leveraging or use of a particular advanced
manufacturing technology or process;
(5) The degree to which there is successful operation of a network,
or technology delivery mechanism, involving the sharing or dissemination
of information related to manufacturing technologies among industry,
universities, nonprofit economic development organizations and state
governments.
(6) The extent to which the Center can increasingly develop
continuing resources -- both technological and financial -- such that
the Centers are finally financially self-sufficient.
15 CFR 290.9 Intellectual property rights.
(a) Awards under the Program will follow the policies and procedures
on ownership to inventions made under grants and cooperative agreements
that are set out in Public Law 96-517 (35 U.S.C. chapter 18), the
Presidential Memorandum on Government Patent Policy to the Heads of
Executive Departments and Agencies Dated February 18, 1983, and part 401
of title 37 of the Code of Federal Regulations, as appropriate. These
policies and procedures generally require the Government to grant to
Centers selected for funding the right to elect to obtain title to any
invention made in the course of the conduct of research under an award,
subject to the reservation of a Government license.
(b) Except as otherwise specifically provided for in an Award,
Centers selected for funding under the Program may establish claim to
copyright subsisting in any data first produced in the performance of
the award. When claim is made to copyright, the funding recipient shall
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and
acknowledgment of Government sponsorship to the data when and if the
data are delivered to the Government, are published, or are deposited
for registration as a published work in the U.S. Copyright Office. For
data other than computer software, the funding recipient shall grant to
the Government, and others acting on its behalf, a paid up,
nonexclusive, irrevocable, worldwide license for all such data to
reproduce, prepare derivative works, distribute copies to the public,
and perform publicly and display publicly, by or on behalf of the
Government. For computer software, the funding recipient shall grant to
the Government, and others acting on its behalf, a paid up,
nonexclusive, irrevocable, worldwide license for all such computer
software to reproduce, prepare derivative works, distribute copies to
the public, and perform publicly and display publicly, by or on behalf
of the Government.
15 CFR 290.9 PART 295 -- ADVANCED TECHNOLOGY PROGRAM
15 CFR 290.9 Subpart A -- General
Sec.
295.1 Purpose.
295.2 Definitions.
295.3 Criteria for selection.
295.4 Notice of availability of funds.
295.5 Intellectual property rights; licensing fees and royalty
payments.
295.6 Protection of confidential information.
295.7 Unspent balances of federal funds.
295.8 Coordination/cooperation with other federal agencies.
295.9 Special financial reporting requirements.
295.10 NIST technical assistance to recipients of awards.
15 CFR 290.9 Subpart B -- Assistance to U.S. Joint Research and
Development Ventures
295.20 Types of assistance available.
295.21 Qualification of applicants.
295.22 Limitations on assistance.
295.23 Dissolution of joint research and development ventures.
295.24 Registration.
15 CFR 290.9 Subpart C -- Assistance to U.S. Business
295.30 Types of assistance available.
295.31 Qualification of applicants.
295.32 Limitations on assistance.
Authority: 15 U.S.C. 271 et seq., and sec. 5131 of the Omnibus
Trade and Competitiveness Act of 1988, Pub. L. 100-418, 102 Stat.
1439, 15 U.S.C. 278n.
Source: 55 FR 30145, July 24, 1990, unless otherwise noted.
15 CFR 290.9 Subpart A -- General
15 CFR 295.1 Purpose.
(a) The purpose of the Advanced Technology Program is to assist
United States businesses to carry out research and development on
pre-competitive generic technologies. These technologies are:
(1) Enabling, in that they offer wide breadth of potential
application and form an important technical basis for future
product-specific applications; and
(2) High value, in that when applied, they offer significant benefits
to the economy.
(b) In the case of joint research and development ventures involving
potential competitors funded under the Program, the willingness of firms
to commit significant amounts of corporate funds to the venture will be
taken as an indication that the proposed research and development is
pre-competitive. For joint ventures that involve firms and their
customers or suppliers or for single firms not proposing cooperative
research and development, their willingness to adequately address
technology transfer requirements to assure prompt and widespread use and
protection of results by participants and, as appropriate, other U.S.
businesses may characterize their research and development as
pre-competitive.
(c) These rules prescribe policies and procedures for the award of
grants and cooperative agreements under the Advanced Technology Program,
in order to ensure the fair, equitable and uniform treatment of all
proposals for assistance under this Program. While the Advanced
Technology Program is authorized to enter into contracts to carry out
its mission, these rules address only the award of grants and
cooperative agreements.
15 CFR 295.2 Definitions.
(a) The term award includes grants and cooperative agreements.
(b) The term generic technology means a concept, component, or
process, or the further investigation of scientific phenomena, that has
the potential to be applied to a broad range of products or processes.
Note: A generic technology may require subsequent research and
development for commercial application.
(c) The term indirect costs means those costs that are incurred for
common or joint objectives and cannot be readily identified with a
particular final cost objective. Because of the diverse characteristics
and accounting practices of nonprofit and for-profit organizations, it
is not possible to specify the types of costs which may be classified as
indirect costs in all situations. However, typical examples of indirect
costs for many organizations may include depreciation or use allowances
on buildings and equipment, the costs of operating and maintaining
facilities, and general administration and general expenses, such as the
salaries and expenses of executive officers, personnel administration,
and accounting. For example, at educational institutions indirect costs
might include the following cost categories: Depreciation and use
allowances, general administration and general expenses, sponsored
projects administration expenses, operation and maintenance expenses,
library expenses, departmental administration expenses, and student
administration and services.
(d) (1) The term joint research and development venture or joint
venture means any group of activities, including attempting to make,
making, or performing a contract, by two or more persons for the purpose
of:
(i) Theoretical analysis, experimentation, or systematic study of
phenomena or observable facts;
(ii) The development or testing of basic engineering techniques;
(iii) The extension of investigative findings or theory of a
scientific or technical nature into practical application for
experimental and demonstration purposes, including the experimental
production and testing of models, prototypes, equipment, materials, and
processes;
(iv) The collection, exchange, and analysis of research information;
or
(v) Any combination of the purposes specified in paragraphs (d)(1)
(i), (ii), (iii), and (iv) of this section, and may include the
establishment and operation of facilities for the conducting of
research, the conducting of such venture on a protected and proprietary
basis, and the prosecuting of applications for patents and the granting
of licenses for the results of such venture, but does not include any
activity specified in paragraph (d)(2) of this section.
For the purposes of this document, the terms consortia and
partnerships are considered to be joint ventures.
(2) The term joint research and development venture excludes the
following activities involving two or more persons:
(i) Exchanging information among competitors relating to costs,
sales, profitability, prices, marketing, or distribution of any product,
process, or service that is not reasonably required to conduct the
research and development that is the purpose of such venture;
(ii) Entering into any agreement or engaging in any other conduct
restricting, requiring, or otherwise involving the production or
marketing by any person who is a party to such joint venture of any
product, process, or service, other than the production or marketing of
proprietary information developed through such venture, such as patents
and trade secrets; and
(iii) Entering into any agreement or engaging in any other conduct
(A) To restrict or require the sale, licensing, or sharing of
inventions or developments not developed through such venture, or
(B) To restrict or require participation by such party in other
research and development activities, that is not reasonably required to
prevent misappropriation of proprietary information contributed by any
person who is a party to such venture or of the results of such venture.
(e) The term matching funds includes the following:
(1) Dollar contributions from state, county, city, company, or other
sources;
(2) The applicant's share of revenue from licensing and royalties as
per 295.5(c);
(3) Fees for services performed;
(4) In-kind contributions of full-time personnel;
(5) In-kind contributions of a pro-rata share of part-time personnel
that the Program deems essential to carrying out the proposed
experimental work program and who devote at least 50% of their time to
the program; and
(6) In-kind value of equipment that the Program deems essential to
carrying out the proposed experimental work program, which may include
either the purchase cost of new equipment or the depreciated value of
previously purchased equipment.
The depreciation method to be used for the matching fund
determination shall be the internal depreciation accounting method used
by the applicant for that equipment prior to the award. The value of
equipment will be further pro-rated according to the share of total use
dedicated to carrying out the proposed ATP work program. The total
value of equipment expenditures allowable under the match may be applied
in the award year expended or pro-rated over the duration of award
years. The total in-kind value of equipment expenditures can not exceed
30% of the applicant's total annual share of matching funds. The total
in-kind value of part-time personnel can not exceed 20% of the
applicant's total annual share of matching funds.
(f) The term person shall be deemed to include corporations and
associations existing under or authorized by the laws of either the
United States, the laws of any of the Territories, the laws of any
State, or the laws of any foreign country.
(g) The term pre-competitive technology means research and
development activities up to the stage where technical uncertainties are
sufficiently reduced to permit preliminary assessment of commercial
potential and prior to development of application-specific commercial
prototypes. Note: At the stage of pre-competitive research and
development, for example, results can be shared within a consortium that
can include potential competitors without reducing the incentives for
individual firms to develop and market commercial products and processes
based upon the results.
(h) The term Program means the Advanced Technology Program.
(i) The term Secretary means the Secretary of Commerce or his
designee.
15 CFR 295.3 Criteria for selection.
(a) The selection process for awards under the Program will be a four
step process based on the criteria listed in paragraph (b) of this
section. In the first step, proposals that do not meet the requirements
of this rule or the program announcement will be rejected; thus, for
example, proposals will be rejected that do not meet requirements set
out in the Notice of Availability of Funds issued pursuant to 295.4, or
in the case of joint ventures, proposals that request more than a
minority share of funding. The second step will be a review to
determine whether proposals have scientific and technical merit (using
the criterion in paragraph (b)(1) of this section). Only those
proposals which score very high with respect to scientific and technical
merit will be further considered. Proposals will be rated as ''not
recommended'' and ''recommended.'' Only those proposals in the
''recommended'' category will be further considered. In the third step,
reviewers with expertise in fields such as business planning, finance,
and technology transfer will be used to supplement reviewers familiar
with the technology itself, and a total score reflecting all criteria
listed in paragraph (b) of this section will be determined for each
proposal. The highest ranking proposals will be designated
''semifinalists.'' Semifinalists will be asked to make oral
presentations on their proposals, and in cases where special facilities
are involved with which the reviewers are not familiar, site visits may
be required. Based on the oral proposal presentations and/or site
visits, adjustments may be made to the scores and the highest ranking
proposals will be designated as finalists. The fourth step will be to
select funding recipients from among the finalists, based upon:
(1) Assuring an appropriate distribution of funds among technologies
and their applications,
(2) The rank order of the applications on the basis of all selection
criteria ( 295.3(b)); and
(3) The availability of funds.
If a joint venture is ranked as a finalist in step 3, but the Program
determines that the proposing organization contains weaknesses in its
structure or cohesiveness that may substantially lessen the probability
of the proposed program being successfully completed, the Program may
inform the applicant of the deficiencies and enter into negotiations
with the applicant in an effort to remedy the deficiencies. If
appropriate, funding in the lesser amount of 10 percent of the amount
originally requested by the applicant or $50,000 may be awarded by the
Program to the applicant to assist in overcoming the organizational
deficiencies. If the Program determines within six months of this award
that the organizational deficiencies have been corrected, the Program
may award the remaining funds requested by the applicant to that
applicant.
(b) The evaluation criteria to be used in selecting any proposal for
funding under this program, and their respective weights, are:
(1) Scientific and Technical Merit of the Proposal (20 percent)
(i) Quality and innovativeness of the proposed technical program
(i.e. uniqueness with respect to current industry practice).
(ii) Appropriateness of the technical risk and feasibility of the
project (i.e. is there sufficient knowledge base to justify the level of
technical risk involved. Projects should press the state of the art
while still demonstrating feasibility).
(iii) Coherency of technical plan and clarity of vision of technical
objectives.
(iv) Adequacy of systems-integration and multidisciplinary planning
including integration of appropriate downstream or upstream production,
manufacturing, quality assurance, and customer service requirements.
(2) Potential Broad-based Benefits of the Proposal (20 percent)
(i) Potential broad impact on U.S. technology and knowledge base.
(ii) Potential to improve U.S. economic growth and the productivity
of a broad spectrum of industrial sectors or businesses.
(iii) Timeliness of proposal (i.e. the potential project results will
not occur too late to be competitively useful).
(3) Technology Transfer Benefits of the Proposal (20 percent)
(i) Evidence that if the project is successful, the participants will
pursue further development of the technology toward commercial
application.
(ii) Project plan adequately addresses technology transfer
requirements to assure prompt and widespread use and protection of
results by participants and, as appropriate, other U.S. businesses.
(4) Experience and Qualifications of the Proposing Organization (20
percent)
(i) Adequacy of proposer's staffing, facilities, equipment, and other
resources to accomplish the proposed program objectives.
(ii) Quality and appropriateness of the full-time technical staff to
carry out the proposed work program and to identify and overcome
technical barriers to meeting project objectives.
(iii) For proposals involving laboratory prototype development,
evidence of availability of adequate design and manufacturing tools
appropriate to the prototype.
(5) Proposer's Level of Commitment and Organizational Structure (20
percent)
(i) Level of commitment of proposer as demonstrated by contribution
of personnel, equipment, facilities, and matching funds.
(ii) For joint ventures, appropriateness of the structure of the
proposed venture organization in terms of composition of participants
(i.e. vertical and/or horizontal integration).
(iii) For joint ventures, appropriate participation by small
businesses.
(iv) Evidence of a strong commitment by proposer to complete and, if
appropriate, provide support for continuation of the program beyond the
period of federal funding.
(v) Potential return to the U.S. government as provided for in
295.5(c).
Each of the subcriteria within a category shall be weighted equally.
However, no project will be funded in the absence of a finding of
scientific and technical merit by the reviewers.
15 CFR 295.4 Notice of availability of funds.
(a) The Program shall periodically publish a notice in the Federal
Register inviting interested parties to submit proposals for funding
under the Program. Applications will be considered for funding only
when submitted in a timely manner in response to a specific notice in
the Federal Register inviting applications for funding.
(b) All notices published in the Federal Register in accord with
paragraph (a) of this section shall include basic information about the
amount of funds available, the approximate number of awards, types of
awards, closing dates, the name, address and telephone number of the
contact person, a requirement that proposals be submitted with a NIST
1262 or NIST 1263, and any other appropriate guidance.
(c) Notices under paragraph (a) of this section shall also state that
awards under the Program shall be subject to all Federal and
Departmental regulations, policies and procedures applicable to
financial assistance awards, and shall require that funds awarded by the
Program under subpart C shall be used only for direct costs and not for
indirect costs, profits, or management fees of the funding recipients.
Notices shall also include the notification that section 319 of Public
Law 101-121 generally prohibits recipients of Federal contracts, grants,
and loans from using appropriated funds for lobbying the Executive or
Legislative Branches of the Federal Government in connection with a
specific contract, grant, or loan. A ''Certification for Contracts,
Grants, Loans, and Cooperative Agreements'' and the SF-LLL, ''Disclosure
of Lobbying Activities'' (if applicable), will be required to be
submitted with the application. Also, notices shall inform applicants
that they are subject to Government-wide Debarment and Suspension
(Nonprocurement) requirements as stated in 15 CFR part 26, and in
accordance with the Drug-Free Workplace Act of 1988, each applicant must
make the appropriate certification as a ''prior condition'' to receiving
a grant or cooperative agreement.
(Approved by the Office of Management and Budget under control number
0693-0009)
(55 FR 30145, July 24, 1990, as amended at 56 FR 25363, June 4, 1991)
15 CFR 295.5 Intellectual property rights; licensing fees and royalty
payments.
(a) Patents. Awards under the Program will follow the policies and
procedures on ownership to inventions made under grants and cooperative
agreements that are set out in Public Law 96-517 (35 U.S.C. chapter 18),
the Presidential Memorandum on Government Patent Policy to the Heads of
Executive Departments and Agencies Dated February 18, 1983, and part 401
of title 37 of the Code of Federal Regulations, as appropriate. These
policies and procedures generally require the Government to grant to
funding recipients the right to elect to obtain title to any invention
made in the course of the conduct of research under an award, subject to
the reservation of a Government license, if the purpose of the award is
the conduct of experimental, developmental or research work. Exceptions
to this rule will only be made
(1) When the funding recipient is not located in the United States or
does not have a place of business in the United States or is subject to
the control of a foreign government; or
(2) In exceptional circumstances when the Secretary determines that
restriction or elimination of the right to obtain title to any subject
invention will better promote the commercialization of the invention by
United States industry and labor.
(b) Copyrights. Except as otherwise specifically provided for in
an Award, funding recipients under the Program may establish claim to
copyright subsisting in any data first produced in the performance of
the award. When claim is made to copyright, the funding recipient shall
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and
acknowledgment of Government sponsorship to the data when and if the
data are delivered to the Government, are published, or are deposited
for registration as a published work in the U.S. Copyright Office. For
data other than computer software, the funding recipient shall grant to
the Government, and others acting on its behalf, a paid up,
nonexclusive, irrevocable, worldwide license for all such data to
reproduce, prepare derivative works, distribute copies to the public,
and perform publicly and display publicly, by or on behalf of the
Government. For computer software, the funding recipient shall grant to
the Government, and others acting on its behalf, a paid up,
nonexclusive, irrevocable, worldwide license for all such computer
software to reproduce, prepare derivative works, distribute copies to
potential users in the United States, and perform publicly and display
publicly, by or on behalf of the Government.
(c) Royalty/Licensing Payments. For technologies resulting from an
award under this program, the Federal Government shall obtain a share of
the licensing fees and royalty payments made to and retained by a
business or joint research and development venture receiving funds under
these procedures in an amount proportional to the Federal share of the
costs incurred by the business or joint venture as determined by
independent audit.
(d) Publication of Research Results. Although the program will
encourage the timely publication of research results by funding
recipients, the decision on whether to publish or not will be made by
the funding recipient(s). Unpublished intellectual property owned and
developed by any business or joint research and development venture
receiving funding or by any member of such a joint venture may not be
disclosed by any officer or employee of the Federal Government except in
accordance with a written agreement between the owner or developer and
the Program. The licenses granted to the Government under 295.5(b)
shall not be considered a waiver of this requirement.
15 CFR 295.6 Protection of confidential information.
As required by section 278n(d)(5) of title 15 of the United States
Code, the following information obtained by the Secretary on a
confidential basis in connection with the activities of any business or
joint research and development venture receiving funding under the
program shall be exempt from disclosure under the Freedom of Information
Act --
(1) Information on the business operation of any member of the
business or joint venture;
(2) Trade secrets possessed by any business or any member of the
joint venture.
15 CFR 295.7 Unspent balances of Federal funds.
If a business or joint research and development venture receiving
funds under these procedures fails before the completion of the period
for which an award has been made, after all allowable costs have been
paid and appropriate audits conducted, the unspent balance of the
Federal funds shall be returned by the recipient to the Program.
15 CFR 295.8 Coordination/Cooperation with other Federal agencies.
So as to avoid any unnecessary duplication of effort and to increase
the possibilities of joint funding of projects of common interest with
other agencies, the Secretary intends to coordinate with other agencies
as appropriate, but particularly where the Secretary determines that the
subject is of substantial interest to another agency.
15 CFR 295.9 Special financial reporting requirements.
Each award under the Program shall contain procedures regarding
financial reporting and auditing to ensure that awards are used for the
purposes specified in these procedures, are in accordance with sound
accounting practices, and are not funding existing or planned research
programs that would be conducted in the same time period in the absence
of financial assistance under the program.
15 CFR 295.10 NIST technical assistance to recipients of awards.
(a) Under the Federal Technology Transfer Act of 1986, the National
Institute of Standards and Technology of the Technology Administration
has the authority to enter into cooperative research and development
agreements with non-Federal parties to provide personnel, services,
facilities, equipment, or other resources except funds toward the
conduct of specified research or development efforts which are
consistent with the missions of the laboratory. In turn, the National
Institute of Standards and Technology has the authority to accept funds,
personnel, services, facilities, equipment and other resources from the
non-Federal party or parties for the joint research effort. Cooperative
research and development agreements do not include procurement contracts
or cooperative agreements as those terms are used in sections 6303,
6304, and 6305 of title 31, United States Code.
(b) In no event will the National Institute of Standards and
Technology enter into a cooperative research and development agreement
with a recipient of awards under the Program which provides for the
payment of Program funds from the award recipient to the National
Institute of Standards and Technology.
15 CFR 295.10 Subpart B -- Assistance to U.S. Joint Research and Development Ventures
15 CFR 295.20 Types of assistance available.
This subpart describes the types of assistance that may be provided
under the authority of 15 U.S.C. 278n(b)(1). Such assistance includes
but is not limited to:
(a) Partial start-up funding for joint research and development
ventures.
(b) A minority share of the cost of joint research and development
ventures for up to five years.
(c) Equipment, facilities and personnel for joint research and
development ventures.
15 CFR 295.21 Qualification of applicants.
Assistance under this subpart will be available to United States
joint research and development ventures, including those which have as
members universities, independent research organizations, and
governmental entities. However, the Program will not provide funding
directly to any governmental entity.
15 CFR 295.22 Limitations on assistance.
No awards are to be made unless, in the judgment of the Secretary,
Federal aid is needed if the industry in question is to form a joint
venture quickly.
15 CFR 295.23 Dissolution of joint research and development ventures.
Upon dissolution of any joint research and development venture
receiving funds under these procedures or at a time otherwise agreed
upon, the Federal Government shall be entitled to a share of the
residual assets of the joint venture proportional to the Federal share
of the costs of the joint venture as determined by independent audit.
15 CFR 295.24 Registration.
Joint research and development ventures selected for funding must
provide notification to the Department of Justice or to the Federal
Trade Commission under the National Cooperative Research Act of 1984.
No funds will be released prior to receipt by the Program of copies of
such notification.
15 CFR 295.24 Subpart C -- Assistance to U.S. Businesses
15 CFR 295.30 Types of assistance available.
This subpart describes the types of assistance that may be provided
under the authority of 15 U.S.C. 278n(b)(2). Such assistance includes
but is not limited to entering into cooperative agreements with United
States businesses, especially small businesses, and with independent
research organizations.
15 CFR 295.31 Qualification of applicants.
Awards under this subpart will be available to all United States
businesses and independent research organizations. However, the Program
will not directly provide funding to any governmental entity or academic
institution.
15 CFR 295.32 Limitations on assistance.
Awards under this subpart may not exceed $2,000,000, or be for more
than three years, unless the Secretary provides a written explanation to
the authorizing committees of both Houses of Congress and then, only
after thirty days during which both Houses of Congress are in session.
No funding for indirect costs shall be available for awards made under
this subpart.
15 CFR 295.32 PARTS 296 -- 299 (RESERVED)
15 CFR 295.32 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
15 CFR 295.32 Table of CFR Titles and Chapters
15 CFR 295.32 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
15 CFR 295.32 Title 2 -- (Reserved)
15 CFR 295.32 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
15 CFR 295.32 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
15 CFR 295.32 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
15 CFR 295.32 Title 6 -- (Reserved)
15 CFR 295.32 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
15 CFR 295.32 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
15 CFR 295.32 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
15 CFR 295.32 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
15 CFR 295.32 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
15 CFR 295.32 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
15 CFR 295.32 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
15 CFR 295.32 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
15 CFR 295.32 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
15 CFR 295.32 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
15 CFR 295.32 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
15 CFR 295.32 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
15 CFR 295.32 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
15 CFR 295.32 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
15 CFR 295.32 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
15 CFR 295.32 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
15 CFR 295.32 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
15 CFR 295.32 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
15 CFR 295.32 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
15 CFR 295.32 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
15 CFR 295.32 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
15 CFR 295.32 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
15 CFR 295.32 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
15 CFR 295.32 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
15 CFR 295.32 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
15 CFR 295.32 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
15 CFR 295.32 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
15 CFR 295.32 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
15 CFR 295.32 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
15 CFR 295.32 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
15 CFR 295.32 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
15 CFR 295.32 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
15 CFR 295.32 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
15 CFR 295.32 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
15 CFR 295.32 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
15 CFR 295.32 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
15 CFR 295.32 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
15 CFR 295.32 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
15 CFR 295.32 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
15 CFR 295.32 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
15 CFR 295.32 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
15 CFR 295.32 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
15 CFR 295.32 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
15 CFR 295.32 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
15 CFR 295.32 CFR Index and Finding Aids Subject/Agency Index List
of Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
15 CFR 295.32 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
15 CFR 295.32 15 CFR (1-1-92 Edition)
15 CFR 295.32 List of CFR Sections Affected
15 CFR 295.32 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985 published in seven
separate volumes.
15 CFR 295.32 1986
15 CFR
51 FR
Page
Subtitle A
3 Removed 18879
4 Appendix B revised 32204
Appendix C revised 32205
4b Appendixes A, B, and C revised 32207
8a Addition confirmed 18879
10 Revised 22497
11 Added 7009, 7022
13 Programs review 5161
20 Added 28926
21 Added; eff. 1-29-87 47005
23 Added; eff. 1-23-87 46614
Chapter I
70 Revised 24653
15 CFR 295.32 1987
15 CFR
52 FR
Page
Subtitle A
4 Authority citation revised 26952
4.9 Revised 26952
11 Authority citation revised 48018
Revised; interim; eff. 4-2-89 48018
11.1 Heading revised; (a) and (b) redesignated as (a) (1) and (2);
introductory text designated as new (a) introductory text; new (a)
heading and (b) added; interim; eff. 1-19-88 48018
22 Added 7
Chapter I
30.55 (h) revised 32782
15 CFR 295.32 1988
15 CFR
53 FR
Page
Subtitle A
4 Revised 6972
4.3 (c)(1) corrected 16211
4.5 (a) and (c) corrected 16211
4.6 (a)(4) corrected 16057
(a) introductory text and (4) and (b)(3) corrected 16211
4.7 (b)(1), (d) (1), (2) introductory text and (i), and (3), and (e)
corrected 16057
4.8 (d) and (e) corrected 16058
4.9 (a)(2) and (c)(1) introductory text corrected 16058
(a)(8) corrected 16211
4b.1 (d)(1) and (e)(3) revised 26236
4b.2 (b)(6) removed; (b) (7) through (10) redesignated as (b) (6)
through (9) 26236
4b.3 (c), (f)(2), and (h) amended 26236
4b.4 (b) amended 26236
4b.5 (a)(2) ad (g)(3)(ii) amended 26236
4b.8 (a)(1)(ii) and (2)(ii)(D) 26236
4b.9 (b), (c), (e), (g)(1), (h) and (i) amended 26236
4b Appendix A amended; Appendix B removed; Appendices C and D
redesignated as Appendices B and C 26236
8c Added 19277
8c.3 Corrected 25722
8c.70 (b) corrected 25722
15 Revised 41318
15a Revised 41319
15b Added 15548
18 Authority citation revised 6798
18.3 Revised 6798
18.4 Heading, (a) introductory text and (2) revised 6798
18.5 (b) (1), (2) and (5) and (g) revised 6798
18.6 (a) revised 6799
18.7 (b) revised 6799
18.11 (b) introductory text and (1) amended 6799
18.12 (a) and (b) amended 6799
18.14 (b) and (c) revised 6799
18.16 (c) amended 6799
18.18 Amended 6799
18.19 Heading revised; text amended 6799
18.20 (a) revised 6799
18.21 Amended 6799
18.22 Revised 6799
18.24 Amended 6800
24 Added 8048, 8087
24.31 (b)(1) added 8049
24.34 Revised 8049
26 Added 19177, 19204
Nomenclature change 19178
26.110 (a)(3) added 19178
15 CFR 295.32 1989
15 CFR
54 FR
Page
Subtitle A
11 Regulations at 52 FR 48018 confirmed; see regulation codified at
49 CFR 24 8912
26 Heading and authority citation revised 4954
Technical correction 6363
26.305 (c) (3) and (4) amended; (c)(5) added; interim 4950, 4954
26.320 (a) revised; interim 4950, 4954
26.600 -- 26.630 (Subpart F) Added; interim 4954
26 Appendix C added; interim 4954
Chapter I
50.5 Revised 29011
15 CFR 295.32 1990
15 CFR
55 FR
Page
Subtitle A
0.735-12 (c)(1) amended 53489
0.735-21 (b) amended 53489
0.735-25 Amended 53489
0.735-29 (a) amended 53489
0.735-36 (d) amended 53489
0.735-38 (a)(2) and (c) amended 53489
4 Appendixes B and C nomenclature change 38314
4b Appendix A nomenclature change 38314
Appendix A amended 38983
5.2 (c) amended 53489
5.3 (d) amended 53489
5.6 (d) amended 53489
6.2 Nomenclature change 38314
6.7 Nomenclature change 38314
6.8 Nomenclature change 38314
7.2 Nomenclature change 38314
7.4 Nomenclature change 38314
7.5 Nomenclature change 38314
7.6 Nomenclature change 38314
7.7 Nomenclature change 38314
7.11 Nomenclature change 38314
7.12 Nomenclature change 38314
7.13 Nomenclature change 38314
7.14 Nomenclature change 38314
7.15 Nomenclature change 38315
7.16 Nomenclature change 38315
7.17 Nomenclature change 38315
7.18 Nomenclature change 3831
7.19 Nomenclature change 38315
7.21 Nomenclature change 38315
7.22 Nomenclature change 38315
7.23 Nomenclature change 38315
7.24 Nomenclature change 38315
7.25 Nomenclature change 38315
7.31 Nomenclature change 38315
7.32 Nomenclature change 38315
7.33 Nomenclature change 38315
8b Authority citation revised 29320
8b.18 (c) revised 29320
10.0 Nomenclature change 38315
10.2 Nomenclature change 38315
10.3 Nomenclature change 38315
10.13 Nomenclature change 38315
10.14 Nomenclature change 38315
10.15 Nomenclature change 38315
14 Removed 53489
16.6 Nomenclature change 38315
17.22 (c) amended 38983
17.24 Introductory text and (c) amended 38983
17.25 (a) and (b) amended 38983
17.26 (a) through (c) amended 38983
19.21 Nomenclature change 38315
25 Added 47854
26.305 Regulation at 54 FR 4950, 4954 confirmed 21692
26.320 Regulation at 54 FR 4950, 4954 confirmed 21692
26.600 -- 26.635 (Subpart F) Revised 21688, 21693
26.630 (c)(1) and (d)(2)(i) added 21693
26.635 (a)(1)(i) and (b)(1) added 21693
26 Appendix C revised 21690, 21693
28 Added; interim 6737, 6748
Chapter I
30.1 (a)(1) introductory text revised 49615
Effective date corrected 50279
30.5 (a)(2) revised 49615
Effective date corrected 50279
30.6 (b) removed; interim 47049
30.22 (b) revised 49615
Effective date corrected 50279
30.35 Removed 49615
Effective date corrected 50279
30.39 (e) added 49615
Effective date corrected 50279
30.55 (h) revised 21187
(c) and (d) revised 49615
Effective date corrected 50279
30.58 Added 49615
Effective date corrected 50279
Chapter II
Chapter II Heading revised 30145
200.100 Nomenclature change 38315
200.101 Nomenclature change 38315
200.102 Nomenclature change 38315
200.103 Nomenclature change 38315
200.104 Nomenclature change 38315
200.105 Nomenclature change 38315
200.106 Nomenclature change 38315
200.107 Nomenclature change 38315
200.108 Nomenclature change 38315
200.109 Nomenclature change 38315
200.110 Nomenclature change 38315
200.111 Nomenclature change 38315
200.112 Nomenclature change 38315
200.113 Nomenclature change 38315
200.114 Nomenclature change 38315
200.115 Nomenclature change 38315
230.1 Nomenclature change 38315
230.4 Nomenclature change 38315
230.7 Nomenclature change 38315
255.1 Nomenclature change 38315
255.3 Nomenclature change 38315
255.5 Nomenclature change 38316
255.6 Nomenclature change 38316
255.7 Nomenclature change 38316
256.1 Nomenclature change 38316
256.2 Nomenclature change 38316
256.3 Nomenclature change 38316
256.4 Nomenclature change 38316
256.5 Nomenclature change 38316
256.6 Nomenclature change 38316
265 Heading nomenclature change 38316
265.1 Nomenclature change 38316
265.2 Nomenclature change 38316
265.42 Nomenclature change 38316
270.0 Nomenclature change 38316
270.2 Nomenclature change 38316
270.3 Nomenclature change 38316
270.5 Nomenclature change 38316
270.7 Nomenclature change 38316
270.8 Nomenclature change 38316
275 Heading nomenclature change 38316
275.1 Nomenclature change 38316
275.2 Nomenclature change 38316
275.3 Nomenclature change 38316
275.4 Nomenclature change 38316
275.5 Nomenclature change 38316
290 Added 38275
295 (Subchapter K and Part) Added 30145
15 CFR 295.32 1991
15 CFR
56 FR
Page
Subtitle A
4 Appendixes B and C revised 20533
8a Redesignated as Part 29a; interim 15993
Regulation at 56 FR 15993 confirmed 29896
19 Authority citation revised 160
19.1 -- 19.7 (Subpart A) Redesignated as part 1160 41282
19.20 -- 19.25 (Subpart B) Revised 160
Redesignated as part 1170 41283
27 Added 28012, 28019
27.101 (b)(5) corrected 29756
27.103 (f) corrected 29756
29a Redesignated from Part 8a; interim 15993
Regulation at 56 FR 15993 confirmed 29896
29b Added; interim 15993
Regulation at 56 FR 15993 confirmed 29896
Chapter I
50.1 (c) revised 35815
Chapter II
265.31 Amended 66969
265.42 (a) and (b) amended 66969
295.4 (b) amended; OMB number 25363
Commerce and Foreign Trade
15
PARTS 0 TO 299
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
15 CFR 295.32 Table of Contents
Page
Explanation v
Title 15:
Subtitle A -- Office of the Secretary of Commerce
Subtitle B -- Regulations Relating to Commerce and Foreign Trade:
Chapter I -- Bureau of the Census, Department of Commerce Chapter
II -- National Institute of Standards and Technology,
Department of Commerce
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
15 CFR 295.32 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
15 CFR 295.32 THIS TITLE
Title 15 -- Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: parts
0-299, 300-799, and part 800-End. The first volume containing parts
0-299 is comprised of Subtitle A -- Office of the Secretary of Commerce,
chapter I -- Bureau of the Census, Department of Commerce, and chapter
II -- National Institute of Standards and Technology, Department of
Commerce. The second volume containing parts 300-799 is comprised of
chapter III -- International Trade Administration, Department of
Commerce, chapter IV -- Foreign-Trade Zones Board, and chapter VII --
Bureau of Export Administration, Department of Commerce. The third
volume containing part 800-End is comprised of chapter VIII -- Bureau of
Economic Analysis, Department of Commerce, chapter IX -- National
Oceanic and Atmospheric Administration, Department of Commerce, chapter
XI -- Technology Administration, Department of Commerce, chapter XII --
United States Travel and Tourism Administration, Department of Commerce,
chapter XIII -- East-West Foreign Trade Board, chapter XIV -- Minority
Business Development Agency, chapter XX -- Office of the United States
Trade Representative, and chapter XXIII -- National Telecommunications
and Information Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of January 1, 1992.
A redesignation table appears in the Finding Aids section of the
volume containing Parts 300-799
For this volume D. W. Leland was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Richard L.
Claypoole, assisted by Alomha S. Morris.
15 CFR 0.0 15 CFR Ch. III (1-1-92 Edition)
15 CFR 0.0 International Trade Admin., Commerce
15 CFR 0.0 Title 15 -- Commerce and
15 CFR 0.0 Foreign Trade
15 CFR 0.0 (This book contains parts 300-799)
Part
SUBTITLE B -- Regulations Relating to Commerce and Foreign Trade
(Continued):
chapter iii -- International Trade Administration, Department of
Commerce 301
chapter iv -- Foreign-Trade Zones Board, Department of Commerce 400
chapter vii -- Bureau of Export Administration, Department of
Commerce 700
15 CFR 0.0 Subtitle B -- Regulations Relating to Commerce and Foreign Trade (Continued)
15 CFR 0.0 15 CFR Ch. III (1-1-92 Edition)
15 CFR 0.0 International Trade Admin., Commerce
15 CFR 0.0 CHAPTER III -- INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT
15 CFR 0.0 OF COMMERCE
Editorial Note: Nomenclature changes to Chapter III appear at 51 FR
34586, Sept. 30, 1986.
15 CFR 0.0 SUBCHAPTER A -- MISCELLANEOUS REGULATIONS
Part
Page
301 Instruments and apparatus for educational and scientific
institutions
302 (Reserved)
303 Watches and watch movements
310 Official U.S. Government recognition of and participation in
international expositions held in the United States
315 Determination of bona fide motor-vehicle manufacturer
325 Export trade certificates of review
15 CFR 0.0
15 CFR 0.0 15 CFR Ch. III (1-1-92 Edition)
15 CFR 0.0 International Trade Admin., Commerce
15 CFR 0.0 SUBCHAPTER A -- MISCELLANEOUS REGULATIONS
15 CFR 0.0 PART 301 -- INSTRUMENTS AND APPARATUS FOR EDUCATIONAL AND
SCIENTIFIC INSTITUTIONS
Sec.
301.1 General provisions.
301.2 Definitions.
301.3 Application for duty-free entry of scientific instruments.
301.4 Processing of applications by the Department of the Treasury
(U.S. Customs Service).
301.5 Processing of applications by the Department of Commerce.
301.6 Appeals.
301.7 Final disposition of an application.
301.8 Instructions for entering instruments through U.S. Customs
under tariff item 851.60.
301.9 Uses and disposition of instruments entered under item 851.60,
TSUS.
301.10 Importation of repair components under item 851.65 for article
previously entered under item 851.60.
Authority: Sec. 6(c), Pub. L. 89-651, 80 Stat. 897 (19 U.S.C.
1202).
Source: 47 FR 32517, July 28, 1982, unless otherwise noted.
15 CFR 301.1 General provisions.
(a) Purpose. This part sets forth the regulations of the Department
of Commerce and the Department of the Treasury applicable to the
duty-free importation of scientific instruments and apparatus by public
or private nonprofit institutions.
(b) Background. (1) The Agreement on the importation of Educational,
Scientific and Cultural Materials (Florence Agreement; ''the
Agreement'') is a multinational treaty, contracted to by approximately
89 countries, which seeks to further the cause of peace through the
freer exchange of ideas and knowledge across national boundaries,
primarily by eliminating tariffs on certain educational, scientific and
cultural materials.
(2) Annex D of the Agreement provides that scientific instruments and
apparatus intended exclusively for educational purposes or pure
scientific research use by qualified nonprofit institutions shall enjoy
duty-free entry if instruments or apparatus of equivalent scientific
value are not being manufactured in the country of importation.
(3) Pub. L. 89-651, the Educational, Scientific, and Cultural
Materials Importation Act of 1966 (19 U.S.C. 1202; ''the Act''),
implements the Agreement in the United States. Section 6(c) of the Act
gives effect to Annex D of the Agreement. This section added tariff
item 851.60 to the Tariff Schedules of the United States (TSUS) to
provide for the duty-free importation of instruments and apparatus
''entered for the use of any nonprofit institution, whether public or
private, established for educational or scientific purposes * * * if no
instrument or apparatus of equivalent scientific value for the purposes
for which the instrument or apparatus is intended to be used is being
manufactured in the United States.'' Headnote 1 to Schedule 8, Part 4,
TSUS, was amended by Pub. L. 89-651 and provides for the use,
disposition and transfer of articles and their repair components
accorded duty-free entry under tariff items 851.60 and 851.65,
respectively, and Headnote 6, added by Pub. L. 89-651, sets forth the
duty-free procedures and responsibilities.
(c) Summary of statutory procedures and requirements. (1) Headnote 1
provides, among other things, that articles covered by tariff items
851.60 (scientific instruments and apparatus) and 851.65 (repair
components therefor) must be exclusively for the use of the institutions
involved and not for distribution, sale or other commercial use within
five years after being entered. These articles may be transferred by a
qualified nonprofit institution to another such institution without duty
liability being incurred. However, if such article is transferred other
than as provided by the preceding sentence, or is used for commercial
purposes within five years after having been entered, duty shall be
assessed in accordance with the procedures established in Headnote 1.
(2) Pursuant to Headnote 6 an institution desiring to enter an
instrument or apparatus under tariff item 851.60 TSUS must file an
application with the Secretary of the Treasury (U.S. Customs Service) in
accordance with these regulations. If the application is made in
accordance with the regulations, notice of the application is published
in the Federal Register to provide an opportunity for interested persons
and government agencies to present views. The application is reviewed
by the Secretary of Commerce (Director, Statutory Import Programs Staff)
whose decision as to whether or not duty-free entry may be accorded the
instrument is published in the Federal Register. An appeal of the final
decision may be filed with the United States Court of Customs and Patent
Appeals, on questions of law only, within 20 days after publication of
the decision in the Federal Register.
(3) Repair components for instruments or apparatus admitted duty-free
under tariff item 851.60 require no application and may be entered
duty-free in accordance with the procedures prescribed in 301.10.
(d) Authority and delegations. The Act authorizes the Secretaries of
Commerce and the Treasury to prescribe joint regulations to carry out
their functions under Headnote 6, TSUS. The Secretary of the Treasury
has delegated authority to the Assistant Secretary for Enforcement and
Operations, who has retained rulemaking authority and further delegated
administration of the regulations to the Commissioner of the U.S.
Customs Service. The authority of the Secretary of Commerce has been
delegated to the Deputy Assistant Secretary for Import Administration
who has retained rulemaking authority and further delegated
administration of the regulations to the Director of the Statutory
Import Programs Staff.
(47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982)
15 CFR 301.2 Definitions.
For the purposes of these regulations and the forms used to implement
them:
(a) Director means the Director of the Statutory Import Programs
Staff, International Trade Administration, U.S. Department of Commerce.
(b) Customs means the U.S. Customs Service and the ''The
Commissioner'' means Commissioner of the U.S. Customs Service, or the
official(s) designated to act on the Commissioner's behalf.
(c) Customs Port or the Port means the port where a particular claim
has been or will be made for duty-free entry of a scientific instrument
or apparatus under tariff item 851.60.
(d) Entry means entry of an instrument into the Customs territory of
the United States for consumption or withdrawal of an instrument from a
Customs bonded warehouse for consumption.
(e) United States includes only the several States, the District of
Columbia and the Commonwealth of Puerto Rico.
(f) Instrument means only instruments and apparatus classifiable
under the tariff items specified in headnote 6(a) of part 4 of Schedule
8. A combination of basic instrument or apparatus and accompanying
accessories shall be treated as a single instrument provided that, under
normal commercial practice, such combination is considered to be a
single instrument and provided further that the applicant has ordered
or, upon favorable action on its application, firmly intends to order
the combination as a unit. Unless the context indicates otherwise,
instrument or apparatus shall mean a foreign ''instrument or apparatus''
for which duty-free entry is sought under tariff item 851.60. Spare
parts typically ordered and delivered with an instrument are also
considered part of an instrument for purposes of these regulations. The
term ''instruments'' shall not include:
(1) Materials or supplies used in the operation of instruments and
apparatus such as paper, cards, tapes, ink, recording materials,
expendable laboratory materials, apparatus that loses identity or is
consumed by usage or other materials or supplies.
(2) Ordinary equipment for use in building construction or
maintenance; or equipment for use in supporting activities of the
institution, such as its administrative offices, machine shops,
libraries, centralized computer facilities, eating facilities, or
religious facilities; or support equipment such as copying machines,
glass working apparatus and film processors.
(3) General purpose equipment such as air conditioners, electric
typewriters, electric drills, refrigerators.
(4) General-purpose computers. Accessories to computers which are
not eligible for duty-free treatment are also ineligible. Scientific
instruments containing embedded computers which are to be used in a
dedicated process or in instrument control, as opposed to general data
processing or computation, are, however, eligible for duty-free
consideration.
(5) Instruments initially imported solely for testing or review
purposes which were entered under bond under tariff item 864.30, subject
to the provisions of Headnote 1(a) of Subpart C, Part 5, Schedule 8 TSUS
and must be exported or destroyed within the time period specified in
that headnote.
(g) Domestic instrument means an instrument which is manufactured in
the United States. A domestic instrument need not be made exclusively
of domestic components or accessories.
(h) Accessory has the meaning which it has under normal commercial
usage. An accessory, whether part of an instrument or an attachment to
an instrument, adds to the capability of an instrument. An accessory
for which duty-free entry is sought under item 851.60 shall be the
subject of a separate application when it is not an accompanying
accessory.
(i) Accompanying accessory means an accessory for an instrument that
is listed as an item in the same purchase order and that is necessary
for accomplishment of the purposes for which the instrument is intended
to be used.
(j) Ancillary equipment means an instrument which may be functionally
related to the foreign instrument but is not operationally linked to it.
Examples of ancillary equipment are vacuum evaporators or
ultramicrotomes, which can be used to prepare specimens for electron
microscopy. Further, equipment which is compatible with the foreign
instrument, but is also clearly compatible with similar domestic
instruments, such as automatic sampling equipment sold for use with a
variety of mass spectrometers, will be treated as ancillary equipment.
A separate application will be required for ancillary equipment even if
ordered with the basic instrument.
(k) Components of an instrument means parts or assemblies of parts
which are substantially less than the instrument to which they relate.
A component enables an instrument to function at a specified minimum
level, while an accessory adds to the capability of an instrument.
Applications shall not be accepted for components of instruments that
did not enter duty-free under tariff item 851.60 or for components of
instruments being manufactured or assembled by a commercial firm or
entity in the U.S. In determining whether an item is a component
ineligible for duty-free consideration or an accessory eligible for such
consideration, Customs shall take into account such factors as the
item's complexity, novelty, degree of integration and pertinency to the
research purposes to be performed by the instrument as a whole.
(l) Produced for stock means an instrument which is manufactured, on
sale and available from a stock.
(m) Produced on order means an instrument which a manufacturer lists
in current catalog literature and is able and willing to produce and
have available without unreasonable delay to the applicant.
(n) Custom-made means an instrument which a manufacturer is willing
and able to make to purchaser's specifications. Instruments resulting
from a development effort are treated as custom-made for the purposes of
these regulations. Also, a special-order variant of a produced on order
instrument, with significant modifications specified by the applicant,
may be treated as custom-made.
(o) Same general category means the category in which an instrument
is customarily classified in trade directories and product-source lists,
e.g., scanning electron microscope, mass spectrometer, light microscope,
x-ray spectrometer.
(p) Comparable domestic instrument means a domestic instrument
capable or potentially capable of fulfilling the applicant's technical
requirements or intended uses, whether or not in the same general
category as the foreign instrument.
(q) Specifications means the particulars of the structural,
operational and performance characteristics or capabilities of a
scientific instrument.
(r) Guaranteed specifications are those specifications which are an
explicit part of the contractual agreement between the buyer and the
seller (or which would become part of the agreement if the buyer
accepted the seller's offer), and refer only to the minimum and
routinely achievable performance levels of the instrument under
specified conditions. If a capability is listed or quoted as a range
(e.g., ''5 to 10 angstroms'') or as a minimum that may be exceeded
(e.g., ''5 angstroms or better''), only the inferior capability may be
considered the guaranteed specification. Evidence that specifications
are ''guaranteed'' will normally consist of their being printed in a
brochure or other descriptive literature of the manufacturer; being
listed in a purchase agreement upon which the purchase is conditioned;
or appearing in a manufacturer's formal response to a request for quote.
If, however, no opportunity to submit a bid was afforded the domestic
manufacturer or if, for any other reason, comparable guaranteed
specifications of the foreign and domestic instruments do not appear on
the record, other evidence relating to a manufacturer's ability to
provide an instrument with comparable specifications may, at the
discretion of the Director, be considered in the comparison of the
foreign and domestic instruments' capabilities.
(s) Pertinent specifications are those specifications necessary for
the accomplishment of the specific scientific research and/or
science-related educational purposes described by the applicant.
Specifications of features (even if guaranteed) which afford greater
convenience, satisfy personal preferences, accommodate institutional
commitments or limitations, or assure lower costs of acquisition,
installation, operation, servicing or maintenance are not pertinent.
For example, a design feature, such as a small number of knobs or
controls on an instrument primarily designed for research purposes,
would be a convenience. The ability to fit an instrument into a small
room, when the required operations could be performed in a larger room,
would be either a cost consideration or a matter of convenience and not
a pertinent specification. In addition, mere difference in design
(which would, for example, broaden the educational experience of
students but not provide superior scientific capability) would not be
pertinent. Also, unless the applicant demonstrates it is necessary for
the accomplishment of its specific scientific purposes, the terms does
not extend to such characteristics as size, weight, appearance,
durability, reliability, complexity or (simplicity), ease of operation,
ease of maintenance, productivity, versatility, ''state of the art''
design, specific design, or other such characteristics.
(47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982)
15 CFR 301.3 Application for duty-free entry of scientific instruments.
(a) Who may apply. An applicant for duty-free entry of an instrument
under tariff item 851.60 must be a public or private nonprofit
institution which is established for educational or scientific purposes
and which has placed a bona fide order or has a firm intention to place
a bona fide order for a foreign instrument within 60 days following a
favorable decision on the institution's application.
(b) Application forms. Applications must be made on form ITA-338P
which may be obtained from the Statutory Import Programs Staff,
International Trade Administration, U.S. Department of Commerce,
Washington, DC 20230, or from the various District Offices of the U.S.
Department of Commerce. (Approved by the Office of Management and
Budget under control number 0625-0037.)
(c) Where to apply. Applications must be filed with the U.S.
Customs Service, Department of the Treasury, at the address specified on
page 1 of the form.
(d) Five copies of the form, including relevant supporting documents,
must be submitted. One copy of the form shall be signed in the original
by the person in the applicant institution under whose direction and
control the foreign instrument will be used and who is familiar with the
intended uses of the instrument. The remaining four copies of the form
may be copies of the original. Attachments should be fully identified
and referenced to the question(s) on the form to which they relate.
(e) A single application (in the requisite number of copies) may be
submitted for any quantity of the same type or model of foreign
instrument provided that the entire quantity is intended to be used for
the same purposes and provided that all units are included on a single
purchase order. A separate application shall be submitted for each
different type or model or variation in the type or model of instrument
for which duty-free entry is sought even if covered by a single purchase
order. Orders calling for multiple deliveries of the same type or model
of instrument over a substantial period of time may, at the discretion
of the Director, require multiple applications.
(f) Failure to answer completely all questions on the form in
accordance with the instructions on the form or to supply the requisite
number of copies of the form and supporting documents may result in
delays in processing of the application while the deficiencies are
remedied, return of the application without processing, or denial of the
application without prejudice to resubmission. Any questions on these
regulations or the application form should be addressed to the Director.
(47 FR 32517, July 28, 1982, as amended at 50 FR 11501, Mar. 22,
1985)
15 CFR 301.4 Processing of applications by the Department of the
Treasury (U.S. Customs Service).
(a) Review and determination. The Commissioner shall date each
application when received by Customs. If the application appears to be
complete, the Commissioner shall determine:
(1) Whether the institution is a nonprofit private or public
institution established for research and educational purposes and
therefore authorized to import instruments into the U.S. under tariff
item 851.60. In making this determination the Commissioner will
generally review the application to determine if the applicant has
attached a copy of the letter from the Internal Revenue Service (IRS)
granting the institution nonprofit status (exemption from Federal income
tax) under section 501(c)(3) of the IRS Code or will determine if the
institution is listed in a current edition of ''Cumulative List of
Exempt Organizations'';
(2) Whether the instrument falls within the classes of instruments
eligible for duty-free entry consideration under tariff item 851.60 (For
eligible classes see Headnote 6(a), Part 4, Schedule 8, TSUS); and
(3) Whether the instrument which is the subject of the application is
intended for the exclusive use of the applicant institution and is not
intended to be used for commercial purposes. For the purposes of this
section, commercial uses would include, but not necessarily be limited
to: Distribution or sale of the instrument by the applicant
institution; any use by, or for the primary benefit of, a commercial
entity; or use of the instrument for demonstration purposes in return
for a fee or other valuable consideration. In making the above
determination, the Commissioner may consider, among other things,
whether the results of any research to be performed with the instrument
will be fully and timely made available to the public. For the purposes
of this section, use of an instrument for the treatment of patients is
considered noncommercial.
If any of the Commissioner's determinations is in the negative, the
application shall be found to be outside the scope of the Act and shall
be returned to the applicant with a statement of the reason(s) for such
findings.
(b) Forwarding of applications to the Department of Commerce. If the
Commissioner finds the application to be within the scope of the Act and
these regulations, the Commissioner shall (1) assign a number to the
application and (2) forward one copy to the Secretary of the Department
of Health and Human Services (HHS), and two copies, including the one
that has been signed in the original, to the Director. The Commissioner
shall retain one copy and return the remaining copy to the applicant
stamped ''Accepted for Transmittal to the Department of Commerce.'' The
applicant shall file the stamped copy of the form with the Port when
formal entry of the article is made. If entry has already occurred
under a claim of tariff item 851.60, the applicant (directly or through
his/her agent) shall at the earliest possible date supply the stamped
copy to the Port. Further instructions for entering instruments are
contained in 301.8 of the regulations.
(47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended
at 50 FR 11501, Mar. 22, 1985)
15 CFR 301.5 Processing of applications by the Department of Commerce.
(a) Public notice and opportunity to present views. (1) Within 10
days of receipt of an application from the Commissioner, the Director
shall make a copy available for public inspection during ordinary
business hours of the Department of Commerce. Unless the Director
determines that an application has deficiencies which preclude
consideration on its merits (e.g., insufficient description of intended
purposes to rule on the scientific equivalency of the foreign instrument
and potential domestic equivalents), he shall publish in the Federal
Register a notice of the receipt of the application to afford all
interested persons a reasonable opportunity to present their views with
respect to the question ''whether an instrument or apparatus of
equivalent scientific value for the purpose for which the article is
intended to be used is being manufactured in the United States.'' The
notice will include the application number, the name and address of the
applicant, a description of the instrument(s) for which duty-free entry
is requested, the name of the foreign manufacturer and a brief summary
of the applicant's intended purposes extracted from the applicant's
answer to question 7 of the application. In addition, the notice shall
specify the date the application was accepted by the Commissioner for
transmittal to the Department of Commerce.
(2) If the Director determines that an application is incomplete or
is otherwise deficient, he may request the applicant to supplement the
application, as appropriate, prior to publishing the notice of
application in the Federal Register. Supplemental information/material
requested under this provision shall be supplied to the Director in two
copies within 20 days of the date of the request and shall be subject to
the certification contained in Question 11 of the form. Failure to
provide the requested information on time shall result in a denial of
the application without prejudice to resubmission.
(3) Requirement for presentation of views (comments) by interested
persons. Any interested person or government agency may make written
comments to the Director with respect to the question whether an
instrument of equivalent scientific value, for the purposes for which
the foreign instrument is intended to be used, is being manufactured in
the United States. Except for comments specified in paragraph (a)(4) of
this section, comments should be in the form of supplementary answers to
the applicable questions on the application form. Comments must be
postmarked no later than 20 days from the date on which the notice of
application is published in the Federal Register. In order to be
considered, comments and related attachments must be submitted to the
Director in duplicate; shall state the name, affiliation and address of
the person submitting the comment; and shall specify the application to
which the comment applies. In order to preserve the right to appeal the
Director's decision on a particular application pursuant to 301.6 of
these regulations, a domestic manufacturer or other interested person
must make timely comments on the application. Separate comments should
be supplied on each application in which a person has an interest.
However, brochures, pamphlets, printed specifications and the like,
included with previous comments, if properly identified, may be
incorporated by reference in subsequent comments. If the Director knows
of the availability of a domestic instrument which may be comparable to
the foreign instrument, he may: (i) Require the applicant to compare
the domestic instrument with the foreign instrument; or (ii) compare
the two instruments whether or not comments are received from a domestic
manufacturer on the specific application.
(4) Comments by domestic manufacturers. Comments of domestic
manufacturers opposing the granting of an application should:
(i) Specify the domestic instrument considered to be scientifically
equivalent to the foreign article for the applicant's specific intended
purposes and include documentation of the domestic instrument's
guaranteed specifications and date of availability.
(ii) Show that the specifications claimed by the applicant in
response to question 8 to be pertinent to the intended purpose can be
equaled or exceeded by those of the listed domestic instrument(s)
whether or not it has the same design as the foreign instrument; that
the applicant's alleged pertinent specifications should not be
considered pertinent within the meaning of 301.2(s) of the regulations
for the intended purposes of the instrument described in response to
question 7 of the application; or that the intended purposes for which
the instrument is to be used do not qualify the instrument for duty-free
consideration under the Act.
(iii) Where the comments regarding paragraphs (a)(4)(i) and
(a)(4)(ii) of this section relate to a particular accessory or optional
device offered by a domestic manufacturer, cite the type, model or other
catalog designation of the accessory device and include the
specification therefor in the comments.
(iv) Where the justification for duty-free entry is based on
excessive delivery time, show whether:
(A) The domestic instrument is as a general rule either produced for
stock, produced on order, or custom-made and;
(B) An instrument or apparatus of equivalent scientific value to the
article, for the purposes described in response to question 7, could
have been produced and delivered to the applicant within a reasonable
time following the receipt of the order.
(v) Indicate whether the applicant afforded the domestic manufacturer
an opportunity to furnish an instrument or apparatus of equivalent
scientific value to the article for the purposes described in response
to question 7 and, if such be the case, whether the applicant submitted
a formal invitation to bid that included the technical requirements of
the applicant.
(5) Untimely comments. Comments must be made on a timely basis to
ensure their consideration by the Director and the technical
consultants, and to preserve the commenting person's right to appeal the
Director's decision on an application. The Director, in his discretion,
may entertain comments filed untimely to the extent that they contain
factual information, as opposed to arguments, explanations or
recommendations.
(6) Provision of general comments. A domestic manufacturer who does
not wish to oppose duty-free entry of a particular application, but who
desires to apprise the Director of the availability and capabilities of
its instrument(s), may at any time supply documentation to the Director
without reference to a particular application. Such documentation shall
be routinely taken into account by the Director when applications
involving comparable foreign instruments are received. The provision of
general comments does not preserve the commentor's right to appeal the
Director's decision on a particular application.
(7) Provision of application to domestic manufacturers. To
facilitate timely comments, the Director may furnish copies of certain
applications to domestic manufacturers who intend to comment on
applications, provided:
(i) The manufacturer requests the service in writing;
(ii) The manufacturer provides copies of current company literature
regarding the domestic instrument and its guaranteed capabilities; and
(iii) The manufacturer identifies the specific models or types of
comparable foreign instrument(s) that it proposes to comment on. The
Director may furnish for comment copies of the appropriate applications
to the domestic manufacturer until the firm requests that the service be
discontinued, provided the firm utilizes the service to supply written
comments on applications. If the recipient of the service fails to
avail itself of the opportunity to comment on appropriate applications
for a period of one year, the Director may at his discretion discontinue
the service. For reasons of cost and administrative burden, the service
may be discontinued at the discretion of the Director. In such case the
Director shall notify all recipients of the service in writing of such
discontinuance.
(b) Additions to the record. The Director may solicit from the
applicant or from foreign or domestic manufacturers, and agents thereof,
or any other person or Government agency considered by the Director to
have competence on any issue pertaining to an application, any
additional information the Director deems necessary to the rendering of
a decision. The Director may attach such conditions and time
limitations deemed appropriate upon the provision of such information
and may draw appropriate inferences from a person's failure to provide
the requested information.
(c) Advice from technical consultants. (1) The Director shall
consider any written advice from the Secretary of HHS, or his delegate,
on the question whether a domestic instrument of equivalent scientific
value to the foreign instrument, for the purposes for which the
instrument is intended to be used, is being manufactured in the United
States.
(2) After the comment period has ended ( 301.5(a)(3)), the complete
application and any comments received and related information are
forwarded to the appropriate technical consultants for their written
advice.
(3) The technical consultants are requested to provide their written
recommendation within 30 days of the date of transmittal. The technical
consultants relied upon for advice may include, but are not limited to,
the National Institutes of Health (delegated the function by the
Secretary of HHS), the National Bureau of Standards and the National
Oceanographic and Atmospheric Administration.
(d) Criteria for the determinations of the Department of Commerce --
(1) Scientific equivalency. (i) The determination of scientific
equivalency shall be based on a comparison of the pertinent
specifications of the foreign instrument with similar pertinent
specifications of comparable domestic instruments (see 301.2(s) for the
definition of pertinent specification). Ordinarily, the Director will
consider only those performance characteristics which are ''guaranteed
specifications'' within the meaning of 301.2(r) of this part. In no
event, however, shall the Director consider performance capabilities
superior to the manufacturer's guaranteed specifications or their
equivalent. In making the comparison the Director may consider a
reasonable combination of domestic instruments that combines two or more
functions into an integrated unit if the combination of domestic
instruments is capable of accomplishing the purposes for which the
foreign instrument is intended to be used. If the Director finds that a
domestic instrument possesses all of the pertinent specifications of the
foreign instrument, he shall find that there is being manufactured in
the United States an instrument of equivalent scientific value for such
purposes as the foreign instrument is intended to be used. If the
Director finds that the foreign instrument possesses one or more
pertinent specifications not possessed by the comparable domestic
instrument(s), the Director shall find that there is not being
manufactured in the United States an instrument of equivalent scientific
value to the foreign instrument for such purposes as the foreign
instrument is intended to be used.
(ii) Programs that may be undertaken at some unspecified future date
shall not be considered in the Director's comparison. In making the
comparison, the Director shall consider only the instrument and
accompanying accessories described in the application and determined
eligible by the U.S. Customs Service. The Director shall not consider
the planned purchase of additional accessories or the planned conversion
of the article at some unspecified future time for such programs.
(iii) In order for the Director to make a determination with respect
to the ''scientific equivalency'' of the foreign and domestic
instruments, the applicant's intended purposes must include either
scientific research or science-related educational programs.
Instruments used exclusively for nonscientific purposes have no
scientific value, thereby precluding the requisite finding by the
Director with respect to ''whether an instrument or apparatus of
equivalent scientific value to such article, for the purposes for which
the article is intended to be used, is being manufactured in the United
States.'' In such cases the Director shall deny the application for the
reason that the instrument has no scientific value for the purposes for
which it is intended to be used. Examples of nonscientific purposes
would be the use of an instrument in routine diagnosis or patient care
and therapy (as opposed to clinical research); in teaching a
nonscientific trade (e.g., printing, shoemaking, metalworking or other
types of vocational training); in teaching nonscientific courses (e.g.,
music, home economics, journalism, drama); in presenting a variety of
subjects or merely for presenting coursework, whether or not science
related (e.g., video tape editors, tape recorders, projectors); and in
conveying cultural information to the public (e.g., a planetarium in the
Smithsonian Institution).
(2) Manufactured in the United States. An instrument shall be
considered as being manufactured in the United States if it is
customarily ''produced for stock,'' ''produced on order'' or
''custom-made'' within the United States. In determining whether a U.S.
manufacturer is able and willing to produce an instrument, and have it
available without unreasonable delay, the normal commercial practices
applicable to the production and delivery of instruments of the same
general category shall be taken into account, as well as other factors
which in the Director's judgment are reasonable to take into account
under the circumstances of a particular case. For example, in
determining whether a domestic manufacturer is able to produce a
custom-made instrument, the Director may take into account the
production experience of the domestic manufacturer including (i) the
types, complexity and capabilities of instruments the manufacturer has
produced, (ii) the extent of the technological gap between the
instrument to which the application relates and the manufacturer's
customary products, (iii) the manufacturer's technical skills, (iv) the
degree of saturation of the manufacturer's production capability, and
(v) the time required by the domestic manufacturer to produce the
instrument to the purchaser's specification. Whether or not the
domestic manufacturer has field tested or demonstrated the instrument
will not, in itself, enter into the decision regarding the
manufacturer's ability to manufacture an instrument. Similarly, in
determining whether a domestic manufacturer is willing to produce an
instrument, the Director may take into account the nature of the bid
process, the manufacturer's policy toward manufacture of the product(s)
in question, the minimum size of the manufacturer's production runs,
whether the manufacturer has bid similar instruments in the past, etc.
Also, if a domestic manufacturer was formally requested to bid an
instrument, without reference to cost limitations and within a leadtime
considered reasonable for the category of instrument involved, and the
domestic manufacturer failed formally to respond to the request, for the
purposes of this section the domestic manufacturer would not be
considered willing to have supplied the instrument.
(3) Burden of proof. The burden of proof shall be on the applicant
to demonstrate that no instrument of equivalent scientific value for the
purposes for which the foreign instrument is to be used is being
manufactured in the United States. Evidence of applicant favoritism
towards the foreign manufacturer (advantages not extended to domestic
firms, such as additional lead time, know-how, methods, data on
pertinent specifications or intended uses, results of research or
development, tools, jigs, fixtures, parts, materials or test equipment)
may be, at the Director's discretion, grounds for rejecting the
application.
(4) Excessive delivery time. Duty-free entry of the instrument shall
be considered justified without regard to whether there is being
manufactured in the United States an instrument of equivalent scientific
value for the intended purposes if excessive delivery time for the
domestic instrument would seriously impair the accomplishment of the
applicant's intended purposes. For purposes of this section, (i) except
when objective and convincing evidence is presented that, at the time of
order, the actual delivery time would significantly exceed quoted
delivery time, no claim of excessive delivery time may be made unless
the applicant has afforded the domestic manufacturer an opportunity to
quote and the delivery time for the domestic instrument exceeds that for
the foreign instrument; and (ii) failure by the domestic manufacturer
to quote a specific delivery time shall be considered a non-responsive
bid (see 301.5(d)(2)). In determining whether the difference in
delivery times cited by the applicant justifies duty-free entry on the
basis of excessive delivery time, the Director shall take into account
(A) the normal commercial practice applicable to the production of the
general category of instrument involved; (B) the efforts made by the
applicant to secure delivery of the instruments (both foreign and
domestic) in the shortest possible time; and (C) such other factors as
the Director finds relevant under the circumstances of a particular
case.
(e) Denial without prejudice to resubmission (DWOP). The Director
may, at any stage in the processing of an application by the Department
of Commerce, DWOP an application if the application contains any
deficiency which, in the Director's judgment, prevents a determination
on its merits. The Director shall state the deficiences of the
application in a letter to the applicant in making the provisional
denial.
(1) The applicant has 60 days from the date of the DWOP to correct
the cited deficiencies in the application unless a request for an
extension of time for submission of the supplemental information has
been received by the Director prior to the expiration of the 60-day
period and is approved.
(2) The written request (letter or telegram) for an extension should
indicate the reasons for the request and the amount of additional time
needed. If granted, extensions of time will generally be limited to 30
days.
(3) Resubmissions must reference the application number of the
earlier application. The resubmission shall be made by letter and filed
in quadruplicate with the Director. The record of a resubmitted
application shall include the original submission on file with the
Department. Any new material or information contained in a
resubmission, which should address the specific deficiencies cited in
the DWOP letter, should be clearly labeled and referenced to the
applicable question(s) on the application form. The resubmission should
be signed and dated by the individual in the applicant institution who
signed the original application or, in his/her absence, the individual
in the applicant institution under whose direction and control the
foreign instrument will be used and who is familiar with the intended
uses of the instrument. The resubmission must be for the instrument
covered by the original application unless the DWOP letter specifies to
the contrary. The resubmission shall be subject to the certification
contained in question 11 on the original application.
(4) If the applicant fails to resubmit within the applicable time
period, the prior DWOP shall, irrespective of the merits of the case,
result in a denial of the application.
(5) The Director shall use the postmark date of the fully completed
resubmission in determining whether the resubmission was made within the
allowable time period. Certified or registered mail, or some other
means which can unequivocally establish the date of mailing, is
recommended.
(6) The applicant may, at any time prior to the end of the
resubmission period, notify the Director in writing that it does not
intend to resubmit the application. Upon such notification, the
application will be deemed to have been withdrawn. (See 301.5(g).)
(7) Information provided in a resubmission that, in the judgment of
the Director, contradicts or conflicts with information provided in a
prior submission, or is not a reasonable extension of the information
contained in the prior submission, shall not be considered in making the
decision on an application that has been resubmitted. Accordingly, an
applicant may elect to reinforce an orginal submission by elaborating in
the resubmission on the description of the purposes contained in a prior
submission and may supply additional examples, documentation and/or
other clarifying detail, but the applicant shall not introduce new
purposes or other material changes in the nature of the original
application. The resubmission should address the specific deficiencies
cited in the DWOP. The Director may draw appropriate inferences from
the failure of an applicant to attempt to provide the information
requested in the DWOP.
(8) In the event an applicant fails to address the noted deficiencies
in the response to the DWOP, the Director may deny the application.
(9) Upon receipt of a responsive resubmission the Director shall
publish a notice in the Federal Register citing the number of the
earlier application, the name and address of the applicant institution,
the instrument(s) involved, and any other information the Director deems
relevant. The notice will also include the Federal Register citation
for the original notice of application. Procedures applicable to
comments on the processing of original applications shall thereafter
apply.
(f) Decisions on applications. The Director shall prepare a written
decision granting or denying each application. However, when he deems
appropriate, the Director may issue a consolidated decision on two or
more applications. The Director shall promptly forward a copy of the
decision to each applicant institution and to the Federal Register for
publication.
(g) Withdrawal of applications. The Director shall discontinue
processing an application withdrawn by the applicant and shall publish
notice of such withdrawal in the Federal Register. If at any time while
its application is pending before the Director, either during the
intital application or resubmission stage, an applicant cancels an order
for the instrument to which the application relates or ceases to have a
firm intention to order such instrument or apparatus, the institution
shall promptly notify the Director. Such notification shall constitute
a withdrawal. Withdrawals shall be considered as having been finally
denied for purposes of 301.7(c) below.
(h) Nothing in this subsection shall be construed as limiting the
Director's discretion at any stage of processing to insert into the
record and consider in making his decision any information in the public
domain which he deems relevant.
(47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended
at 50 FR 11501, Mar. 22, 1985)
15 CFR 301.6 Appeals.
(a) An appeal from any decision made pursuant to 301.5(f) may be
taken, in accordance with headnote 6(e) to part 4 of Schedule 8, only to
the U.S. Court of Customs and Patent Appeals and only on questions of
law, within 20 days after publication of the decision in the Federal
Register. If at any time while its application is under consideration
by the Court of Customs and Patent Appeals on an appeal from a finding
by the Director an institution cancels an order for the instrument to
which the application relates or ceases to have a firm intention to
order such instrument, the institution shall promptly notify the court.
(b) An appeal may be taken by: (1) The institution which makes the
application;
(2) A person who, in the proceeding which led to the decision, timely
represented to the Secretary of Commerce in writing that he/she
manufactures in the United States an instrument of equivalent scientific
value for the purposes for which the instrument to which the application
relates is intended to be used;
(3) The importer of the instrument, if the instrument to which the
application relates has been entered at the time the appeal is taken;
or
(4) An agent of any of the foregoing.
(c) Questions regarding appeal procedures should be addressed
directly to the U.S. Court of Customs and Patent Appeals, Clerks'
Office, Washington, DC 20439.
15 CFR 301.7 Final disposition of an application.
(a) Disposition of an application shall be final when 20 days have
elapsed after publication of the Director's final decision in the
Federal Register (see 301.6(a)) and no appeal has been taken pursuant
to 301.6 of these regulations, of if such appeal has been taken, when
final judgment is made and entered by the Court.
(b) The Director shall notify the Customs Port when disposition of an
application becomes final. If the Director has not been advised of the
port of entry of the instrument, or if entry has not been made when the
decision on the application becomes final, the Director shall notify the
Commissioner of final disposition of the application.
(c) An instrument, the duty-free entry of which has been finally
denied, may not be the subject of a new application from the same
institution.
15 CFR 301.8 Instructions for entering instruments through U.S.
Customs under tariff item 851.60.
Failure to follow the procedures in this section may disqualify an
instrument for duty-free entry notwithstanding an approval of an
application on its merits by the Department of Commerce.
(a) Entry procedures. (1) An applicant desiring duty-free entry of
an instrument may make a claim at the time of entry of the instrument
into the Customs territory of the United States that the instrument is
entitled to duty-free classification under tariff item 851.60.
(2) If no such claim is made the instrument shall be immediately
classified without regard to tariff item 851.60, duty will be assessed,
and the entry liquidated in the ordinary course.
(3) If a claim is made for duty-free entry under tariff item 851.60,
the entry shall be accepted without requiring a deposit of estimated
duties provided that a copy of the form, stamped by Customs as accepted
for transmittal to the Department of Commerce in accordance with
301.4(b), is filed simultaneously with the entry.
(4) If a claim for duty-free entry under tariff item 851.60 is made
but is not accompanied by a copy of the properly stamped form, a deposit
of the estimated duty is required. Liquidation of the entry shall be
suspended for a period of 180 days from the date of entry. On or before
the end of this suspension period the applicant must file with the
Customs Port a properly stamped copy of the form. In the event that the
Customs Port does not receive a copy of the properly stamped form within
180 days the instrument shall be classified and liquidated in the
ordinary course, without regard to tariff item 851.60.
(5) Entry of an instrument after the Director's approval of an
application. Whenever an institution defers entry until after it
receives a favorable final determination on the application for
duty-free entry of the instrument, the importer shall file with the
entry of the instrument (i) the stamped copy of the form, (ii) the
institution's copy of the favorable final determination and (iii) proof
that a bona fide order for the merchandise was placed on or before the
60th day after the favorable decision became final pursuant to 301.7 of
these regulations. Liquidation in such case shall be made under tariff
item 851.60.
(b) Normal Customs entry requirements. In addition to the above
entry requirements mentioned in paragraph (a) of this section, the
normal Customs entry requirements must be met. In most of the cases,
the value of the merchandise will be such that the formal Customs entry
requirements, which generally include the filing of a Customs entry
bond, must be complied with. (For further information, see 19 CFR 142.3
and 142.4 (TD-221).)
(c) Late filing. Notwithstanding the preceding provisions of 301.8
any document, form, or statement required by regulations in this section
to be filed in connection with the entry may be filed at any time before
liquidation of the entry becomes final, provided that failure to file at
the time of entry or within the period for which a bond was filed for
its production was not due to willful negligence or fraudulent intent.
Liquidation of any entry becomes conclusive upon all persons if the
liquidation is not protested in writing in accordance with 19 CFR Part
174, or the necessary document substantiating duty-free entry is not
produced in accordance with 19 CFR 10.112, within 90 days after notice
of liquidation. Upon notice of such final and conclusive liquidation,
the Department of Commerce will cease the processing of any pending
application for duty-free entry of the subject article. In all other
respects, the provisions of this section do not apply to Department of
Commerce responsibilities and procedures for processing applications
pursuant to other sections of these regulations.
(d) Payment of duties. The applicant will be billed for payment of
duties when Customs determines that such payment is due.
15 CFR 301.9 Uses and disposition of instruments entered under item
851.60, TSUS.
(a) An instrument granted duty-free entry may be transferred from the
applicant institution to another eligible institution provided the
latter institution agrees not to use the instrument for commercial
purposes within 5 years of the date of entry of the instrument. In such
cases title to the instrument must be transferred directly between the
institutions involved. An institution transferring a foreign instrument
entered under item 851.60 within 5 years of its entry shall so inform
the Customs Port in writing and shall include the following information:
(1) The name and address of the transferring institution.
(2) The name and address of the transferee.
(3) The date of transfer.
(4) A detailed description of the instrument.
(5) The serial number of the instrument and any accompanying
accessories.
(6) The entry number, date of entry, and port of entry of the
instrument.
(b) Whenever the circumstances warrant, and occasionally in any
event, the fact of continued use for 5 years for noncommercial purposes
by the applicant institution shall be verified by Customs.
(c) If an instrument is transferred in a manner other than specified
above or is used for commercial purposes within 5 years of entry, the
institution for which such instrument was entered shall promptly notify
the Customs officials at the Port and shall be liable for the payment of
duty in an amount determined on the basis of its condition as imported
and the rate applicable to it.
15 CFR 301.10 Importation of repair components under item 851.65 for
article previously entered under item 851.60.
(a) An institution which owns an instrument entered under tariff item
851.60 and desires to enter repair components for such instrument under
tariff item 851.65 may do so without regard to the application
procedures applicable to entries under item 851.60 provided the
institution certifies to the customs official at the port of entry upon
entry of such components that they are needed repair components for an
instrument owned by that institution and previously entered and
classified under tariff item 851.60.
(b) Instruments entered under item 851.60 and subsequently returned
to the foreign manufacturer for repair, replacement or modification are
not covered by tariff item 851.65, although they may, in certain
circumstances, be considered non-dutiable under other Customs provisions
(e.g., drawback within the specified period pursuant to 19 U.S.C.
1313(c)). Such instruments, if classified as dutiable by Customs, may
nevertheless be made the subject of a new application under tariff item
851.60.
(47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982)
15 CFR 301.10 PART 302 -- (RESERVED)
15 CFR 301.10 PART 303 -- WATCHES AND WATCH MOVEMENTS
Sec.
303.1 Purpose.
303.2 Definitions and forms.
303.3 Determination of the total annual duty-exemption.
303.4 Determination of territorial distribution.
303.5 Application for annual allocations of duty-exemptions.
303.6 Allocation and reallocation of exemptions among producers.
303.7 Issuance of licenses and shipment permits.
303.8 Maintenance of duty-exemption entitlements.
303.9 Restrictions on the transfer of duty-exemptions.
303.10 Limitations, requirements, restrictions, and prohibitions.
303.11 Mid-year reporting requirement.
303.12 Issuance and use of production incentive certificates.
303.13 Appeals.
303.14 Allocation factors and miscellaneous provisions.
Authority: Pub. L. 97-446, 96 Stat. 2329 (19 U.S.C. 1202); Pub.
L. 94-241, 90 Stat. 263 (48 U.S.C.A. 1681, note).
Source: 49 FR 17740, Apr. 25, 1984, unless otherwise noted.
15 CFR 303.1 Purpose.
(a) This part implements the responsibilities of the Secretaries of
Commerce and the Interior (''the Secretaries'') under Pub. L. 97-446,
enacted on 12 January 1983, which substantially amended Pub. L. 89-805,
enacted 10 November 1966, amended by Pub. L. 94-88, enacted 8 August
1975, and amended by Pub. L. 94-241, enacted 24 March 1976. The law
provides for exemption from duty of territorial watches and watch
movements without regard to the value of the foreign materials they
contain, if they conform with the provisions of U.S. Legal Note 5 to
Chapter 91 of the Harmonized Tariff Schedule of the United States
(''91/5''). 91/5 denies this benefit to articles containing any
material which is the product of any country with respect to which
Column 2 rates of duty apply; authorizes the Secretaries to establish
the total quantity of such articles, provided that the quantity so
established does not exceed 10,000,000 units or one-ninth of apparent
domestic consumption, whichever is greater, and provided also that the
quantity is not decreased by more than ten percent nor increased by more
than twenty percent (or to more than 7,000,000 units, whichever is
greater) of the quantity established in the previous year.
(b) The law directs the International Trade Commission to determine
apparent domestic consumption for the preceding calendar year in the
first year U.S. insular imports of watches and watch movements exceed
9,000,000 units. 91/5 authorizes the Secretaries to establish
territorial shares of the overall duty-exemption within specified
limits; and provides for the annual allocation of the duty-exemption
among insular watch producers equitably and on the basis of allocation
criteria, including minimum assembly requirements, that will reasonably
maximize the net amount of direct economic benefits to the insular
possessions.
(c) The amended law also provides for the issuance to producers of
certificates entitling the holder (or any transferee) to obtain duty
refunds on watches and watch movements and parts (except discrete
watchcases) imported into the customs territory of the United States.
The amounts of these certificates may not exceed specified percentages
of the producers' verified creditable wages in the insular possessions
(90% of wages paid for the production of the first 300,000 units and
declining percentages, established by the Secretaries, of wages paid for
incremental production up to 750,000 units by each producer) nor an
aggregate annual amount for all certificates exceeding $5,000,000
adjusted for growth by the ratio of the previous year's gross national
product to the gross national product in 1982. Refund requests are
governed by regulations issued by the Department of the Treasury. The
Secretaries are authorized to issue regulations necessary to carry out
their duties under Headnote 6 and may cancel or restrict the license or
certificate of any insular manufacturer found violating the regulations.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985; 53 FR 52994, Dec. 30, 1988)
15 CFR 303.2 Definitions and forms.
(a) Definitions. Unless the context indicates otherwise:
(1) Act means Pub. L. 97-446, enacted January 12, 1983 (19 U.S.C.
1202), 96 Stat. 2329.
(2) Secretaries means the Secretary of Commerce and the Secretary of
Interior or their delegates, acting jointly.
(3) Director means the Director of the Statutory Import Programs
Staff, International Trade Administration, U.S. Department of Commerce.
(4) Sale or tranfer of a business means the sale or transfer of
control, whether temporary or permanent, over a firm to which a
duty-exemption has been allocated, to any other firm, corporation,
partnership, person or other legal entity by any means whatsoever,
including, but not limited to, merger and transfer of stock, assets or
voting trusts.
(5) New firm means an entity which is completely separate from and
unassociated with (by way of ownership or control) any duty-exempt
recipient in any territory. A new entrant is a new firm which has
received an allocation.
(6) Producer means a duty-exemption holder which has maintained its
eligibility for further allocations by complying with these regulations.
(7) Established industry means all producers, including new entrants,
that have maintained their eligibility for further allocations.
(8) Territories, territorial, and insular possessions refer to the
insular possessions of the United States (i.e., the U.S. Virgin Islands,
Guam, and American Samoa) and the Northern Mariana Islands.
(9) Duty-exemption refers to the authorization of duty-free entry of
a specified number of watches and watch movements into the Customs
Territory of the United States.
(10) Total annual duty-exemption refers to the entire quantity of
watches or watch components which may enter duty-free into the customs
territory of the United States from the territories under 91/5 in a
calendar year, as determined by the Secretaries or by the International
Trade Commission in accordance with the Act.
(11) Territorial distribution refers to the apportionment by the
Secretaries of the total annual duty-exemption among the separate
territories; territorial share means the portion consigned to each
territory by this apportionment.
(12) Allocation refers to the distribution of all parts of a
territorial share, or a portion thereof, among the several producers in
a territory.
(13) Creditable wages means all wages -- up to the amount per person
shown in 303.14(a)(1)(i) -- paid to permanent residents of the
territories employed in a firm's 91/5 watch and watch movement assembly
operations, plus any wages paid for the assembly of watches and watch
movements the value of components for which exceed the limit set forth
in 303.14(b)(3) or for the repair of non-91/5 watches and watch
movements, up to a total amount equal to 25 percent of the firm's other
creditable wages. Wages paid for the assembly of watches and watch
movements from components exceeding the value limits and for the repair
of non-91/5 watches and watch movements are not creditable to the extent
that such wages exceed the ratio set forth here. Also excluded are
wages paid for special services rendered to the firm by accountants,
lawyers, or other professional personnel, and for the assembly of
non-91/5 watches and watch movements which are ineligible for other than
value-limit reasons.
(14) Non-91/5 watches and watch movements include, but are not
limited to, watches and movements which are liquidated as dutiable by
the U.S. Customs Service; contain any material which is the product of
any country with respect to which Column 2 rates of duty apply; are
ineligible for duty-free treatment pursuant to law or regulation; or
are units the assembly of which the Department has determined not to
involve substantial and meaningful work in the territory (as elsewhere
defined in these regulations).
(15) Discrete movements and components means screws, parts,
components and subassemblies not assembled together with another part,
component or subassembly at the time of importation into the territory.
(A mainplate containing set jewels or shock devices, together with other
parts, would be considered a single discrete component, as would a
barrel bridge subassembly.)
(b) Forms -- (1) ITA-334P ''Application for License to Enter Watches
and Watch Movements into the Customs Territory of the United States.''
This form must be completed annually by all producers desiring to
receive an annual allocation. It is also used, with appropriate special
instructions for its completion, by new firms applying for
duty-exemptions.
(2) ITA-333 ''License to Enter Watches and Watch Movements into the
Customs Territory of the United States.'' This form is issued by the
Director to producers who have received an allocation and constitutes
authorization for issuing specific shipment permits by the territorial
governments. It is also used to record the balance of a producer's
remaining duty-exemptions after each shipment permit is issued.
(3) ITA-340 ''Permit to Enter Watches and Watch Movements into the
Customs Territory of the United States.'' This form is issued by the
territorial government to producers holding a valid license and
authorizes duty-free entry of a specified amount of watches or watch
movements at a specified U.S. Customs port.
(4) ITA-321P ''Mid-year Report on Watch Assembly Operations of Firms
Granted a Duty-free Watch Allocation.'' This form provides the
Secretaries with data required for program evaluation and planning
purposes. Each producer is required to return the completed form to the
Director on or before July 15 of each calendar year.
(5) ITA-360P ''Certificate of Entitlement to Secure the Refund of
Duties on Watches and Watch Movements.'' This document authorizes an
insular producer to request the refund of duties on imports of watches,
watch movements and parts therefor, with certain exceptions, up to a
specified value. Certificates may be used to obtain duty refunds only
when presented with a properly executed Form ITA-361P.
(6) ITA-361P ''Request for Refund of Duties on Watches and Watch
Movements.'' This form must be completed to obtain the refund of duties
authorized by the Director through Form ITA-360P. After authentication
by the Department of Commerce, it may be used for the refund of duties
on items which were entered into the customs territory of the United
States during a specified time period. Copies of the appropriate
Customs entries must be provided with this form to establish a basis for
issuing the claimed amounts. The forms may also be used to transfer all
or part of the producer's entitlement to another party. (See 303.12.)
(The information collection requirements in paragraph (b)(1) were
approved by the Office of Management and Budget under control number
0625-0040. The information collection requirements in paragraphs (b)(4)
through (6) were approved under control number 0625-0134)
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985; 53 FR 52994, Dec. 30, 1988; 56 FR 9621, Mar. 7, 1991)
15 CFR 303.3 Determination of the total annual duty-exemption.
(a) Procedure for determination. If, after considering the
productive capacity of the territorial watch industry and the economic
interests of the territories, the Secretaries determine that the amount
of the total annual duty-exemption, or the territorial shares of the
total amount, should be changed, they shall publish in the Federal
Register a proposed limit on the quantity of watch units which may enter
duty-free into the customs territory of the United States and proposed
territorial shares thereof and, after considering comments, establish
the limit and shares by Federal Register notice. If the Secretaries
take no action under this section, they shall make the allocations in
accordance with the limit and shares last established by this procedure.
(b) Standards for determination. (1) Notwithstanding paragraph
(b)(2) of this section, the limit established for any year may be
7,000,000 units if the limit established for the preceding year was a
smaller amount.
(2) Subject to paragraph (c) of this section, the total annual
duty-exemption shall not be decreased by more than 10% of the quantity
established for the preceding calendar year, or increased, if the
resultant total is larger than 7,000,000, by more than 20% of the
quantity established for the calendar year immediately preceding.
(3) The Secretaries shall determine the limit after considering the
interests of the territories; the domestic or international trade
policy objectives of the United States; the need to maintain the
competitive nature of the territorial industry; the total contribution
of the industry to the economic well-being of the territories; and the
territorial industry's utilization of the total duty-exemption
established in the preceding year.
(c) Determinations based on consumption. (1) The Secretaries shall
notify the International Trade Commission whenever they have reason to
believe duty-free watch imports from the territories will exceed
9,000,000 units, or whenever they make a preliminary determination that
the total annual duty-exemption should exceed 10,000,000 units.
(2) In addition to the limitations in paragraph (b) of this section,
the Secretaries shall not establish a limit exceeding one-ninth of
apparent domestic consumption if such consumption, as determined by
International Trade Commission, exceeds 90 million units.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 7170, Feb. 21, 1985;
50 FR 43568, Oct. 28, 1985; 53 FR 52994, Dec. 30, 1988)
15 CFR 303.4 Determination of territorial distribution.
(a) Procedure for determination. The Secretaries shall determine the
territorial shares concurrently with their determination of the total
annual duty exemption, and in the same manner (see 303.3, above).
(b) Standards for determination -- (1) Limitations. A territorial
share may not be reduced by more than 500,000 units in any calendar
year. No territorial share shall be less than 500,000 units.
(2) Criteria for setting precise quantities. The Secretaries shall
determine the precise quantities after considering, inter alia, the
territorial capacity to produce and ship watch units. The Secretaries
shall further bear in mind the aggregate benefits to the territories,
such as creditable wages paid, creditable wages per unit exported, and
corporate income tax payments.
(3) Limitations on reduction of share. The Secretaries shall not
reduce a territory's share if its producers use 85% or more of the
quantity distributed to that territory in the immediately preceding
year, except in the case of a major increase or decrease in the number
of producers in a territory or if they believe that a territorial
industry will decrease production by more than 15% from the total of the
preceding year.
(4) Standby redistribution authority. The Secretaries may
redistribute territorial shares if such action is warranted by
circumstances unforeseen at the time of the initial distributions, such
as that a territory will use less than 80% of its total by the end of a
calendar year, or if a redistribution is necessary to maintain the
competitive nature of the territorial industries.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 7170, Feb. 21, 1985)
15 CFR 303.5 Application for annual allocations of duty-exemptions.
(a) Application forms (ITA-334P) shall be furnished to producers by
January 1, and must be completed and returned to the Director no later
than January 31, of each calendar year.
(b) All data supplied are subject to verification by the Secretaries
and no allocation shall be made to producer until the Secretaries are
satisfied that the data are accurate. To verify the data,
representatives of the Secretaries shall have access to relevant company
records including:
(1) Work sheets used to answer all questions on the application form;
(2) Original records from which such data are derived;
(3) Records pertaining to ownership and control of the company and to
the satisfaction of eligibility requirements of duty-free treatment of
its product by the U.S. Customs Service;
(4) Records pertaining to corporate income taxes, gross receipts
taxes and excise taxes paid by each producer in the territories on the
basis of which a portion of each producer's annual allocation is or may
be predicated;
(5) Customs, bank, payroll, and production records;
(6) Records on purchases of components and sales of movements,
including proof of payment; and
(7) Any other records in the possession of the parent or affiliated
companies outside the territory pertaining to any aspect of the
producer's 91/5 watch assembly operation.
(c) Data verification shall be performed in the territories, unless
other arrangements satisfactory to the Departments are made in advance,
by the Secretaries' representatives by the end of February of each
calendar year. In the event a company cannot substantiate the data in
its application before allocations must be calculated, the Secretaries
shall determine which data will be used.
(d) Records subject to the requirements of paragraph (b), above,
shall be retained for a period of two years following their creation.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985; 53 FR 52994, Dec. 30, 1988)
15 CFR 303.6 Allocation and reallocation of exemptions among producers.
(a) Interim allocations. As soon as practicable after January 1 of
each year the Secretaries shall make an interim allocation to each
producer equaling 70% of the number of watch units it has entered
duty-free into the customs territory of the United States during the
first eight months of the preceding calendar year, or any lesser amount
requested in writing by the producer. The Secretaries may also issue a
lesser amount if, in their judgment, the producer might otherwise
receive an interim allocation in an amount greater than the producer's
probable annual allocation. In calculating the interim allocations, the
Director shall count only duty-free watches and watch movements verified
by the U.S. Customs Service as having been entered on or before August
31 of the preceding year. Interim allocations shall not be published.
(b) Annual allocations. (1) By March 1 of each year the Secretaries
shall make annual allocations to the producers in accordance with the
allocation formula based on data supplied in their annual application
(Form ITA-334P) and verified by the Secretaries.
(2) The excess of a producer's duty-exemption earned under the
allocation criteria over the amount formally requested by the producer
shall be considered to have been relinquished voluntarily (see paragraph
(f) below). A producer's request may be modified by written
communication received by the Secretaries by February 28, or, at the
discretion of the Secretaries, before the annual allocations are made.
An allocation notice shall be published in the Federal Register.
(c) Supplemental allocations. At the request of a producer, the
Secretaries may supplement a producer's interim allocation if the
Secretaries determine the producer's interim allocation will be used
before the Secretaries can issue the annual allocation. Allocations to
supplement a producer's annual allocation shall be made under the
reallocation provisions prescribed below.
(d) Allocations to new entrants. In making interim and annual
allocations to producers selected the preceding year as new entrants,
the Secretaries shall take into account that such producers will not
have had a full year's operation as a basis for computation of its
duty-exemption. The Secretaries may make an interim or annual
allocation to a new entrant even if the firm did not operate during the
preceding calendar year.
(e) Special allocations. A producer may request a special allocation
if unusual circumstances kept it from making duty-free shipments at a
level comparable with its past record. In considering such requests,
the Secretaries shall take into account the firm's proposed assembly
operations; its record in contributing to the territorial economy; and
its intentions and capacity to make meaningful contributions to the
territory. They shall also first determine that the amount of the
special allocation requested will not significantly affect the amounts
allocated to other producers pursuant to 303.6(b)(1).
(f) Reallocations. Duty-exemptions may become available for
reallocation as a result of cancellation or reduction for cause,
voluntary relinquishment or nonplacement of duty-exemption set aside for
new entrants. The Secretaries may reallocate such duty-exemptions among
the remaining producers who can use additional quantities in a manner
judged best for the economy of the territories. The Secretaries shall
consider such factors as the wage and income tax contributions of the
respective producers during the preceding year and the nature of the
producer's present assembly operations. In addition, the Secretaries
may consider other factors which, in their judgment, are relevant to
determining that applications from new firms, in lieu of reallocations,
should be invited for part or all of unused portions of the total duty
exemptions. Such factors may include:
(1) The ability of the established industry to use the
duty-exemption;
(2) Whether the duty-exemption is sufficient to support new entrant
operations;
(3) The impact upon the established industry if new entrants are
selected, particularly with respect to the effect on local employment,
tax contributions to the territorial government, and the ability of the
established industry to maintain satisfactory production levels; and
(4) Whether additional new entrants offer the best prospect for
adding economic benefits to the territory.
After considering these factors, the Secretaries may set aside all or
a portion of the allocation available for reallocation and invite
applications from new entrants by publishing a notice in the Federal
Register. If the Secretaries determine that inviting applications from
new firms would be in the best interest of the territory, they shall set
forth their reasons for doing so and describe the information new firms
will be required to submit in applying for an allocation, including but
not limited to the applicant's financial capacity, production and
marketing experience, proposed source of parts and components,
affiliation with other business entities in the watchmaking and
watchmarketing industry, proposed degree of assembly, proposed wage
rates by job classification, and the applicant's intentions with regard
to the number of units to be assembled and shipped duty-free into the
customs territory, establishing or acquiring a local production
facility, and seeking territorial tax exemptions or other local
industrial incentive benefits.
(g) Section 303.14 of this part contains the criteria and formulae
used by the Secretaries in calculating each watch producer's annual
watch duty-exemption allocation, and other special rules or provisions
the Secretaries may periodically adopt to carry out their
responsibilities in a timely manner while taking into account changing
circumstances. References to duty-exemptions, unless otherwise
indicated, are to the amount available for reallocation in the current
calendar year. Specifications of or references to data or bases used in
the calculation of current year allocations (e.g., economic
contributions and shipments) are, unless indicated otherwise, those
which were generated in the previous year.
(h) The Secretaries may propose changes to 303.14 at any time they
consider it necessary to fulfill their responsibilities. Normally, such
changes will be proposed towards the end of each calendar year.
Interested parties shall be given an opportunity to submit written
comments on proposed changes.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985)
15 CFR 303.7 Issuance of licenses and shipment permits.
(a) Issuance of Licenses (ITA-333). (1) Concurrently with annual
allocations under 303.5 the Director shall issue a non-transferable
license (Form ITA-333) to each producer. The Director shall also issue
a replacement license if a producer's allocation is reduced pursuant to
303.6.
(2) Annual duty-exemption licenses shall be for only that portion of
a producer's annual duty-exemption not previously licensed.
(3) If a producer's duty-exemption has been reduced, the Director
shall not issue a replacement license for the reduced amount until the
producer's previous license has been received for cancellation by the
Director.
(4) A producer's license shall be used in their entirety, except when
they expire or are cancelled, in order of their date of issuance, i.e.,
an interim license must be completely used before shipment permits can
be issued against an interim supplemental license.
(5) Outstanding licenses issued by the Director automatically expire
at midnight, December 31, of each calendar year. No unused allocation
of duty-exemption may be carried over into the subsequent calendar year.
(6) The Director shall ensure that all licenses issued are
conspicuously marked to show the type of license issued, the identity of
the producer, and the year for which the license is valid. All licenses
shall bear the signature of the Director.
(7) Each producer is responsible for the security of its licenses.
The loss of a license shall be reported immediately to the Director.
Defacing, tampering with, and unauthorized use of a license are
forbidden.
(b) Issuance of shipment permits (ITA-340). (1) The Governors of the
respective territories are authorized to issue shipment permits against
producers' duty-exemption licenses. The Governors may delegate this
authority to responsible government officials by providing the name,
official title and sample signature of the designated official(s) to the
Director. Such delegations of authority shall become effective upon
their receipt by the Director unless the Director, on behalf of the
Secretaries, withholds concurrence with a written statement of the
reasons therefor.
(2) Each permit must specify the number of watches and watch
movements included in the shipment, the unused balance remaining on the
producer's license, and pertinent shipping information.
(3) Except when commercial hardship may result, producers shall
request a shipment permit for each separate shipment or consignment.
(4) Shipment permits shall be valid in the calendar year in which
issued. To accomplish duty-free entry, the importer of record or his
broker must present the merchandise and the original Form ITA-340 and
other required documents to the District Director of Customs at the port
of entry by midnight, December 31, of the year in which the shipment
permit is issued.
(5) If a shipment permit expires before the shipment can be presented
to Customs officials due to transportation delays, carrier mishandling
or other circumstances beyond the control of the shipper, the shipment
may be entered duty-free upon presentation of a new shipment permit
issued against a currently valid license, provided there is compliance
with all Customs regulations and procedures. In such cases the expired
shipment permit must be forwarded to the Director with a letter
explaining the pertinent circumstances. Such entries shall be counted
as a shipment in the year of entry for purposes of calculating the
producer's annual allocation the following year.
(6) For purposes of calculating calendar year allocations, any
watches or watch movements shipped by a producer for duty-free entry
into the customs territory of the United States and lost prior to entry
into the customs territory of the United States shall, nevertheless, be
considered as having been entered into the customs territory during the
year in which they were shipped, provided the Secretaries are satisfied
that shipment occurred but was lost before entering the Customs
territory. If the producer is able to assemble and ship a replacement
shipment before the end of the calendar year, the Director will, upon
written request of the producer, direct the issuing officer in the
territory to issue a replacement permit without charging the producer's
license. In such cases, credit for the purpose of calculating
allocations will be accorded the replacement shipment but not the lost
shipment.
(7) If a shipment permit has been issued and not used, the holder of
the license shall notify the office which issued the shipment permit and
present the permit for cancellation. The issuing office shall correct
the balance shown on the producer's license and notify the Director of
the action taken. If a shipment permit is lost, the shipper shall
immediately notify both the issuing office and the Director.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985)
15 CFR 303.8 Maintenance of duty-exemption entitlements.
(a) The Secretaries may order a producer to show cause within 30 days
of receipt of the order why the duty-exemption to which the firm would
otherwise be entitled should not be cancelled, in whole or in part, if:
(1) At any time after June 30 of the calendar year:
(i) A producer's assembly and shipment record provides a reasonable
basis to conclude that the producer will use less than 80 percent of its
total allocation by the end of the calendar year, and
(ii) The producer refuses a request from the Departments to
relinquish that portion of its allocation which they conclude will not
be used; or
(2) A producer fails to satisfy or fulfill any term, condition or
representation, whether undertaken by itself or prescribed by the
Departments, upon which receipt of allocation has been predicated or
upon which the Departments have relied in connection with the sale or
transfer of a business together with its allocation; or
(3) A producer, in the judgment of the Secretaries, has failed to
make a meaningful contribution to the territory for a period of two or
more consecutive calendar years, when compared with the performance of
the duty-free watch assembly industry in the territory as a whole. This
comparison shall include the producer's quantitative use of its
allocations, amount of direct labor employed in the assembly of watches
and watch movements, and the net amount of corporate income taxes paid
to the government of the territory. If the producer fails to satisfy
the Secretaries as to why such action should not be taken, the firm's
allocation shall be reduced or cancelled, whichever is appropriate under
the show-cause order. The eligibility of a firm whose allocation has
been cancelled to receive further allocations may also be terminated.
(b) The Secretaries may also issue a show-cause order to reduce or
cancel a producer's allocation or production incentive certificate (see
303.12, below), as appropriate, or to declare the producer ineligible to
receive an allocation or certificate if it violates any regulation in
this part, uses a form, license, permit, or certificate in an
unauthorized manner, or fails to provide information or data required by
these regulations or requested by the Secretaries or their delegates in
the performance of their responsibilities.
(c) If a firm's allocation is reduced or cancelled, or if a firm
voluntarily relinquishes a part of its allocation, the Secretaries may:
(1) Reallocate the allocation involved among the remaining producers
in a manner best suited to contribute to the economy of the territory;
(2) Invite applications from new firms in accordance with 303.6(f);
or
(3) Do neither of the above if deemed in the best interest of the
territories and the established industry.
15 CFR 303.9 Restrictions on the transfer of duty-exemptions.
(a) The sale or transfer of a duty-exemption from one firm to another
shall not be permitted.
(b) The sale or transfer of a business together with its
duty-exemption shall be permitted with prior written notification to the
Departments. Such notification shall be accompanied by certifications
and representations, as appropriate, that:
(1) If the transferee is a subsidiary of or in any way affiliated
with any other company engaged in the production of watch movements
components being offered for sale to any territorial producer, the
related company or companies will continue to offer such watch and watch
movement components on equal terms and conditions to all willing buyers
and shall not engage in any practice, in regard to the sale of
components, that competitively disadvantages the non-affiliated
territorial producers vis-a-vis the territorial subsidiary;
(2) The sale or transfer price for the business together with its
duty-exemption does not include the capitalization of the duty-exemption
per se;
(3) The transferee is neither directly or indirectly affiliated with
any other territorial duty-exemption holder in any territory;
(4) The transferee will not modify the watch assembly operations of
the duty-exemption firm in a manner that will significantly diminish its
economic contributions to the territory.
(c) At the request of the Departments, the transferee shall permit
representatives of the Departments to inspect whatever records are
necessary to establish to their satisfaction that the certifications and
representations contained in paragraph (b) of this section have been or
are being met.
(d) Any transferee who is either unwilling or unable to make the
certifications and representations specified in paragraph (b) of this
section shall secure the Departments' approval in advance of the sale or
transfer of the business together with its duty-exemption. The request
for approval shall specify which of the certifications specified in
paragraph (b) of this section the firm is unable or unwilling to make,
and give reasons why such fact should not constitute a basis for the
Departments' disapproval of the sale or transfer.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985)
15 CFR 303.10 Limitations, requirements, restrictions, and
prohibitions.
(a) Limitation on value of components. (1) Watch movements and
watches assembled from components with a value of more than the maximum
values set forth, respectively, in 303.14(b)(3) shall not be eligible
for duty-exemptions into the U.S. Customs territory.
(2) As used in subsection (a) value means the value of the
merchandise plus all charges and costs incurred up to the last point of
shipment (i.e., prior to entry of the parts and components into the
territory).
(b) Minimum assembly requirements. No insular watch or watch
component may be entered free of duty into the customs territory of the
United States unless it meets the requirements of this paragraph.
(1) Conventional watch movements must be assembled from no fewer than
a certain number of discrete parts and components and conventional
watches from no fewer than another number, both designated in
303.14(b)(1).
(2) Quartz analog movements and watches must be assembled as
prescribed in 303.14(b)(2).
(3) The disassembly of components or movements following their
manufacture or assembly, whether in the country of origin, in the
territory, or in an in-transit site, shall constitute a violation of the
requirements of this paragraph.
(c) Minimum labor input criteria. (1) No insular watch or watch
component may be entered free of duty into the customs territory of the
United States unless it meets the requirements of this paragraph.
(2) Firms assembling watches or watch components shall make wage
payments in the territory averaging not less than the amounts set forth
in 303.14(b)(4), respectively, per watch and watch movement assembled
and shipped into the customs area of the United States. In applying
this criterion, the Departments may make appropriate data adjustments to
take into account wages paid for units assembled during the calendar
year prior to the year of the allocation.
(d) Prohibition of preferential supply relationships. (1) With the
exceptions shown below, no producer shall accept from any watch parts
and components supplier advantages and preferences which might result in
a more favorable competitive position for itself vis-a-vis other
territorial producers relying on the same supplier. This prohibition
shall apply whether or not the supplier is affiliated with a territorial
producer.
(2) A producer may accept a price differential provided it is based
solely on volume considerations usual and customary in the trade and
provided the supplier's prices for the line and model in question
reflect such volume-based differentials and have previously been
published in a manner which could reasonably be considered to have made
them easily accessible to any other territorial producer.
(3) A producer may purchase parts and components from a supplier on
credit extended by the supplier, even though the supplier may not be
willing to extend similar credit to all other territorial producers,
provided that the denial of such credit is impartially based on the
purchaser's credit history.
(4) Limited production runs. (i) Any territorial producer which is
affiliated with a supplier shall attach the following clause to each
purchase order (excepting purchase orders described in (iv), below) to
that supplier:
In the event this order is for parts and components which are in
short supply in your inventory, whether because of sales from a
production run of a line or model for which no further production run is
scheduled or because these parts and components were produced in a
limited run, my firm is prohibited by regulation from placing an order
for such line or model if filling it would deplete its inventory by more
than 50%. Accordingly, we expressly exclude from this purchase order
any portion of the total quantity exceeding this fraction of your
inventory and request that you confirm your acceptance of such excess
only after 90 days have elapsed after your acceptance of the allowable
portion. We understand that your receipt of an order for such
merchandise from another territorial producer within that 90-day period
will receive precedence over our order.
(ii) If, in compliance with the clause shown in (i), above, a watch
parts and components supplier does not accept a purchase order, the
affiliated producer shall immediately report to the Departments in
writing:
(A) The total amount (in equivalent units) of its purchase order;
(B) The line and model ordered;
(C) The date the supplier accepted the order for the allowable
portion; and
(D) What amount of the order was not accepted.
(iii) Each territorial producer unable to receive confirmation for
the entire amount of any purchase order it places with a supplier known
to be affiliated with another territorial producer shall immediately
report to the Departments in writing:
(A) The total amount (in equivalent units) of its purchase order;
(B) The line and model ordered;
(C) The date it placed the order; and
(D) What portion of the amount it ordered was not confirmed.
(iv) These provisions do not apply to purchase orders by an
affiliated territorial producer for the same line or model from the same
supplier which are made more than 120 days following the supplier's
partial acceptance of such an order in compliance with the affiliated
territorial producer's request.
(5) Introduction of new lines and models. (i) If a territorial
producer is affiliated with a supplier planning to introduce a new line
or model, the territorial producer may (subject to the restrictions
governing limited production runs, above) order, assemble, ship, and
market the line or model without restriction during a period 60 days
before and 60 days after the public introduction of the line or model.
(ii) Thereafter, the affiliated territorial producer shall treat the
new line or model as any other established line or model subject to all
the restrictions and prohibitions of this paragraph.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985)
15 CFR 303.11 Mid-year reporting requirement.
(a) Each producer is required to file a report (Form ITA-321P) on
July 15 of each year covering the period January 1 to June 30. Copies
of Form ITA-321P will be forwarded by the Director to each producer at
the territorial address of record at least 30 days prior to the required
reporting date. The Form ITA-321P must be returned to the Director by
registered mail.
(b) In addition to providing the Director with specific information
on the producer's watch movement assembly operations during the
reporting period and projected operations for the remainder of the
calendar year, Form ITA-321P is also used to report changes in
ownership, interest and control occurring during the reporting period.
(See also 303.9 regarding restrictions on the transfer of
duty-exemptions.)
15 CFR 303.12 Issuance and use of production incentive certificates.
(a) Issuance of certificates. (1) Certificates of Entitlement, Form
ITA-360, shall be issued before March 1 of the current year.
(2) Certificates shall not be issued to more than one company in the
territories owned or controlled by the same corporate entity.
(b) Securities and handling of certificates. (1) Certificate holders
are responsible for the security of the certificates. The certificates
shall be kept at the territorial address of the insular producer or at
another location having the advance approval of the Departments.
(2) All refund requests made pursuant to the certificates shall be
entered on the reverse side of the certificate.
(3) Certificates shall be returned by registered mail to the
Departments when:
(i) A refund is requested which exhausts the entitlement on the face
of the certificate,
(ii) The certificate expires, or
(iii) The Departments request their return with good cause.
(4) Certificate entitlements may be transferred according to the
procedures described in (c) of this section.
(c) The use and transfer of certificate entitlements. (1) Insular
producers issued a certificate may request a refund by executing a Form
ITA-361P (see 303.2(b)(6) and the instructions on the form). After
authentication by the Department of Commerce, the Form ITA-361P may be
used to obtain duty refunds on watch movements, watches, and parts
therefor. Duties on watchcases not containing a movement and on
articles containing any material which is the product of a country with
respect to which Column 2 rates of duty apply may not be refunded.
Articles for which duty refunds are claimed must have entered the
customs territory of the United States during the two-year period prior
to the issue date of the certificate or during the one-year period the
certificate remains valid. Copies of the appropriate Customs entries
must be provided with the refund request in order to establish a basis
for issuing the claimed amounts. Certification regarding drawback
claims and liquidated refunds relating to the presented entries is
required from the claimant on the form.
(2) Regulations issued by the U.S. Customs Service, U.S. Department
of the Treasury, govern the refund of duties under Pub. L. 97-446. If
the Departments receive information from the Customs Service that a
producer has made unauthorized use of any official form, they shall
cancel the affected certificate.
(3) The insular producer may transfer a portion of all of its
certificate entitlement to another party by entering in block C of Form
ITA-361P the name and address of the party.
(4) After a Form ITA-361P transferring a certificate entitlement to a
party other than the certificate holder has been authenticated by the
Department of Commerce, the form may be exchanged for any consideration
satisfactory to the two parties. In all cases, authenticated forms
shall be transmitted to the certificate holder or its authorized
custodian for disposition (see paragraph (b) above).
(5) All disputes concerning the use of an authenticated Form ITA-361P
shall be referred to the Departments for resolution. Any party named on
an authenticated Form ITA-361P shall be considered an ''interested
party'' within the meaning of 303.13 of this part.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985; 56 FR 9621, Mar. 7, 1991)
15 CFR 303.13 Appeals.
(a) Any official decision or action relating to the allocation of
duty-exemptions or to the issuance or use of production incentive
certificates may be appealed to the Secretaries by any interested party.
Such appeals must be received within 30 days of the date on which the
decision was made or the action taken in accordance with the procedures
set forth in paragraph (b) of this section. Interested parties may
petition for the issuance of a rule, or amendment or repeal of a rule
issued by the Secretaries. Interested parties may also petition for
relief from the application of any rule on the basis of hardship or
extraordinary circumstances resulting in the inability of the petitioner
to comply with the rule.
(b) Petitions shall bear the name and post office address of the
petitioner and the name and address of the principal attorney or
authorized representative (if any) for the party concerned. They shall
be addressed to the Secretaries and filed in one original and two copies
with the U.S. Department of Commerce, Import Administration,
International Trade Administration, Washington, D.C. 20230, Attention:
Statutory Import Programs Staff. Petitions shall contain the following:
(1) A reference to the decision, action or rule which is the subject
of the petition;
(2) A short statement of the interest of the petitioner;
(3) A statement of the facts as seen by the petitioner;
(4) The petitioner's argument as to the points of law, policy of
fact. In cases where policy error is contended, the alleged error
together with the policy the submitting party advocates as the correct
one should be described in full;
(5) A conclusion specifying the action that the petitioner believes
the Secretaries should take.
(c) The Secretaries may at their discretion schedule a hearing and
invite the participation of other interested parties.
(d) The Secretaries shall communicate their decision which shall be
final, to the petitioner by registered mail.
(e) If the outcome of any petition materially affects the amount of
the petitioner's allocation and if the Secretaries' consideration of the
petition continues during the calculation of the annual allocations, the
Secretaries shall set aside a portion of the affected territorial share
in an amount which, in their judgment, protects the petitioner's
interest and shall allocate the remainder among the other producers.
(49 FR 17740, Apr. 25, 1984, as amended at 56 FR 9622, Mar. 7, 1991)
15 CFR 303.14 Allocation factors and miscellaneous provisions.
(a) The allocation formula. (1) Except as provided in (a)(2) of this
section, the territorial shares (excluding any amount set aside for
possible new entrants) shall be allocated among the several producers in
each territory in accordance with the following formula:
(i) Fifty percent of the territorial share shall be allocated on the
basis of the net dollar amount of economic contributions to the
territory consisting of the dollar amount of creditable wages, up to a
maximum of $32,000 per person, paid by each producer to territorial
residents, plus the dollar amount of income taxes (excluding penalty and
interest payments and deducting any income tax refunds and subsidies
paid by the territorial government), and
(ii) Fifty percent of the territorial share shall be allocated on the
basis of the number of units of watches and watch movements assembled in
the territory and entered by each producer duty-free into the customs
territory of the United States.
(2) If there is only one producer in a territory, the entire
territorial share, excluding any amount set aside for possible new
entrants, may be allocated without recourse to any distributive formula.
(b) Minimum assembly and wage contribution requirements. (1) The
minimum number of discrete parts and components, referred to in
303.10(b)(2), for conventional watch movements is 30 and the
conventional watches 33.
(2) Quartz analog watch movements must be assembled from parts
knocked down to the maximum degree possible for the technical
capabilities of the insular industry as a whole. The greatest degree of
disassembly specified, for each manufacturer's brand and model, by any
producer in any territory purchasing such brands and models shall
constitute the disassembly required as a minimum for the industry as a
whole. In no event, however, shall a quartz analog kit qualify for
duty-free treatment if it does not permit complete assembly in the
territory of the setting mechanism and train assemblies.
(3) The maximum value of components referred to in 303.10(a)(1)
shall be $35 for watch movements and $175 for watches.
(4) The average wage payments referred to in 303.10(c)(2) are $0.75
for watch movements and $0.95 for watches.
(c) Calculation of the value of production incentive certificates.
(1) The value of each producer's certificate shall equal the producer's
average creditable wages per unit shipped (including non-91/5 units as
provided for in 303.2(a)(13)) multiplied by the sum of:
(i) The number of units shipped up to 300,000 units times a factor of
90%; plus
(ii) Incremental units shipped up to 450,000 units times a factor of
85%; plus
(iii) Incremental units shipped up to 600,000 times a factor of 80%;
plus
(iv) Incremental shipments up to 750,000 units times a factor of 65%.
(2) The Departments may make adjustments for these data in the manner
set forth in section 303.10(c)(2).
(3) Section 303.2(a)(13) provides for certain non-91/5 wages to be
creditable up to 25% of other creditable wages. For purposes of
subparagraph (1), above, non-91/5 units shall enter the calculation of a
producer's average creditable wages only proportionally with the
crediting of wages paid for their assembly. If, for example, 40% of
wages paid for the assembly of non-91/5 units is disallowed, 40% of the
related units will also be excluded from the calculation.
(d) New entrant invitations. (1) Applications from new firms are
invited for the territorial shares of American Samoa and the Northern
Mariana Islands.
(2) Applications for new firms are invited for 200,000 units of the
Guam territorial share.
(3) Applications from new firms are invited for 200,000 units of the
Virgin Islands territorial share.
(e) Territorial shares. The shares of the total duty exemption are
4,200,000 for the Virgin Islands, 1,000,000 for Guam, 500,000 for
American Samoa, and 500,000 for the Northern Mariana Islands.
(49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28,
1985; 53 FR 17825, May 19, 1988; 53 FR 52679, Dec. 29, 1988; 53 FR
52994, Dec. 30, 1988; 56 FR 9622, Mar. 7, 1991)
15 CFR 303.14 PART 310 -- OFFICIAL U.S. GOVERNMENT RECOGNITION OF AND
PARTICIPATION IN INTERNATIONAL EXPOSITIONS HELD IN THE UNITED STATES
Sec.
310.1 Background and purpose.
310.2 Definitions.
310.3 Applications for Federal recognition.
310.4 Action on application.
310.5 Report of the Secretary on Federal recognition.
310.6 Recognition by the President.
310.7 Statement for Federal participation.
310.8 Proposed plan for Federal participation.
310.9 Report of the Secretary on Federal participation.
Authority: Pub. L. 91-269, 84 Stat. 271 (22 U.S.C. 2801 et seq.).
Source: 40 FR 34107, Aug. 14, 1975, unless otherwise noted.
Redesignated at 46 FR 57457, Nov. 24, 1981.
Editorial Note: Nomenclature changes to part 310 appear at 46 FR
57457, Nov. 24, 1981.
15 CFR 310.1 Background and purpose.
The regulations in this part are issued under the authority of Pub.
L. 91-269 (84 Stat. 271, 22 U.S.C. 2801 et seq.) which establishes an
orderly procedure for Federal Government recognition of, and
participation in, international expositions to be held in the United
States. The Act provides, inter alia, that Federal recognition of an
exposition is to be granted upon a finding by the President that such
recognition will be in the national interest. In making this finding,
the President is directed to consider, among other factors, a report
from the Secretary of Commerce as to the purposes and reasons for an
exposition and the extent of financial and other support to be provided
by the State and local officials and business and community leaders
where the exposition is to be held, and a report by the Secretary of
State to determine whether the exposition is qualified for registration
under Bureau of International Expositions (BIE) rules. The BIE is an
international organization established by the Paris Convention of 1928
(T.I.A.S. 6548 as amended by T.I.A.S. 6549) to regulate the conduct and
scheduling of international expositions in which foreign nations are
officially invited to participate. The BIE divides international
expositions into different categories and types and requires each member
nation to observe specified minimum time intervals in scheduling each of
these categories and types of expositions. 1 Under BIE rules, member
nations may not ordinarily participate in an international exposition
unless such exposition has been approved by the BIE. The United States
became a member of the BIE on April 30, 1968, upon ratification of the
Paris Convention by the U.S. Senate (114 Cong. Rec. 11012).
Federal participation in a recognized international exposition
requires a specific authorization by the Congress, upon a finding by the
President that such participation would be in the national interest.
The Act provides for the transmission to Congress of a participation
proposal by the President. This proposal transmits to the Congress
information regarding the exposition, including a statement that it has
been registered by the BIE and a plan for Federal participation prepared
by the Secretary of Commerce in cooperation with other interested
Federal departments and agencies.
1The BIE defines a General Exposition of the First Category as an
exposition dealing with progress achieved in a particular field applying
to several branches of human activity at which the invited countries are
obligated to construct national pavilions. A General Exposition of the
Secondary Category is a similar exposition at which invited countries
are not authorized to construct national pavilions, but occupy space
provided by the exposition sponsors. Special Category Expositions are
those dealing only with one particular technique, raw material, or basic
need.
The BIE frequency rules require that an interval of 15 years must
elapse between General Expositions of the First Category held in one
country. General Expositions of the Second Category require an interval
of 10 years. An interval of 5 years must ordinarily elapse between
Special Category Expositions of the same kind in one country or three
months between Special Category Expositions of different kinds. These
frequency intervals are computed from the date of the opening of the
exposition.
More detailed BIE classification criteria and regulations are
contained in the Paris Convention of 1928, as amended in 1948 and 1966.
Applicants not having a copy of the text of this convention may obtain
one by writing the Director. (The Convention may soon be amended by a
Protocol which has been approved by the BIE and ratified by the United
States. This amendment would increase authorized frequencies or
intervals for BIE approved expositions.)
15 CFR 310.2 Definitions.
For the purpose of this part, except where the context requires
otherwise:
(a) Act means Pub. L. 91-269.
(b) Secretary means the Secretary of Commerce.
(c) Commissioner General means the person appointed to act as the
senior Federal official for the exposition as required by BIE rules and
regulations.
(d) Director means the Director of the International Expositions
Staff, Office of the Deputy Assistant Secretary for Export Development,
International Trade Administration, Department of Commerce.
(e) Applicant means a State, County, municipality, a political
subdivision of the foregoing, private non-profit or not-for-profit
organizations, or individuals filing an application with the Director
seeking Federal recognition of an international exposition to be held in
the United States.
(f) State means one of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Trust Territory of the Pacific
Islands.
(g) Exposition means an international exposition proposed to be held
in the United States for which an application has been filed with the
Director seeking Federal recognition under the Act; which proposes to
invite more than one foreign country to participate; and, which would
exceed three weeks in duration. Any event under three weeks in duration
is not considered an international exposition under BIE rules.
(40 FR 34107, Aug. 14, 1975. Redesignated and amended at 46 FR 57457,
Nov. 24, 1981)
15 CFR 310.3 Applications for Federal recognition.
(a) Applications for Federal recognition of an exposition shall be
filed with, and all official communications in connection therewith
addressed to, the International Expositions Staff, International Trade
Administration, Department of Commerce, Washington, DC 20230.
(b) Every application, exhibit, or enclosure, except where
specifically waived by the Director, shall be in quadruplicate, duly
authenticated and referenced.
(c) Every application shall be in letter form and shall contain the
date, address, and official designation of the applicant and shall be
signed by an authorized officer or individual.
(d) Every application, except where specifically waived by the
Director, shall be accompanied by the following exhibits:
1. Exhibit No. 1. A study setting forth in detail the purpose for
the exposition, including any historical, geographic, or other
significant event of the host city, State, or region related to the
exposition.
2. Exhibit No. 2. An exposition plan setting forth in detail (i) the
theme of the exposition and the ''storyline'' around which the entire
exposition is to be developed; (ii) whatever preliminary architectural
and design plans are available on the physical layout of the site plus
existing and projected structures; (iii) the type of participation
proposed in the exposition (e.g., foreign and domestic exhibits); (iv)
cultural, sports, and special events planned; (v) the proposed BIE
category of the event and evidence of its conformity to the regulations
of the BIE (a copy of these regulations can be obtained from the
Director upon request); (vi) the proposed steps that will be taken to
protect foreign exhibitors under the BIE model rules and regulations and
(vii) in writing commit its organization to the completion of the
exposition.
3. Exhibit No. 3. Documentary evidence of State, regional and local
support (e.g., letters to the applicant from business and civic
leadership of the region, pledging assistance and/or financing; State
and/or municipal resolutions, acts, or appropriations; referendums on
bond issues, and others).
4. Exhibit No. 4. An organization chart of the exposition management
structure (actual or proposed) of the applicant, including description
of the functions, duties and responsibilities of each official position
along with bibliographic material, including any professional experience
in the fields of architecture, industrial design, engineering, labor
relations, concession management, interpretative theme planning, exhibit
development, etc., on principal officers, if available. (The principal
officials should also be prepared to submit subsequent individual
statements under oath of their respective financial holdings and other
interests.)
5. Exhibit No. 5. A statement setting forth in detail (i) the
availability of visitor services in existence or projected to
accommodate tourists at the exposition (e.g., number of hotel and motel
units, number and type of restaurants, health facilities, etc.); (ii)
evidence of adequate transportation facilities and accessibility of the
host city to large groups of national and international visitors (e.g.,
number and schedule of airlines, bus lines, railroads, and truck lines
serving the host city); and (iii) plans to promote the exposition as a
major national and international tourist destination.
6. Exhibit No. 6. A statement setting forth in detail the
applicant's plans for acquiring title to, or the right to occupy and use
real property, other than that owned by the applicant or by the United
States, essential for implementing the project or projects covered by
the application. If the applicant, at the time of filing the
application, has acquired title to the real property, he should submit a
certified copy of the deed(s). If the applicant, at the time of filing
the application, has by easement, lease, franchise, or otherwise
acquired the right to occupy and use real property owned by others, he
should submit a certified copy of the appropriate legal instrument(s)
evidencing this right.
7. Exhibit No. 7. A statement of the latest prevailing hourly wage
rates for construction workers in the host city (e.g., carpenters,
cement masons, sheet metal workers, etc.).
8. Exhibit No. 8. Information on attitudes of labor leaders as to
''no strike'' agreements during the development and operation of the
exposition. Actual ''no strike'' pledges are desirable.
9. Exhibit No. 9. A detailed study conducted and certified by a
nationally recognized firm(s) in the field of economics, accounting,
management, etc., setting forth (i) proposed capital investment cost;
cash flow projections; and sources of financing available to meet these
costs, including but not limited to funds from State and municipal
financing, general obligation and/or general revenue bond issues, and
other public or private sources of front-end capital; (ii) assurances
that the ''guaranteed financing'' is or will be available in accordance
with Section 2(a)(1)(b) of Pub. L. 91-269; (iii) the projected
expenses for managing the exposition; (iv) projected operational
revenues broken down to include admissions, space rental, concessions,
service fees and miscellaneous income; and (v) cost-benefit
projections. These should be accompanied by a statement of the firm
that the needed cash flow, sources of funding, and revenue projections
are realistic and attainable.
10. Exhibit No. 10. A description of the exposition implementation
time schedule and the management control system to be utilized to
implement the time schedule (e.g., PERT, CPM, etc.).
11. Exhibit No. 11. A statement setting forth in detail the public
relations, publicity and other promotional plans of the applicant. For
example, the statement could include: (i) an outline of the public
relations/publicity program broken down by percentage allocations among
the various media; (ii) a public relations/publicity program budget
with the various calendar target dates for completion of phases prior to
the opening, the opening and post-opening of the exposition; and (iii)
protocol plans for U.S. and foreign dignitaries, as well as for special
ceremonies and events and how these plans are to be financed.
12. Exhibit No. 12. A study setting forth in detail the benefits to
be derived from the exposition and residual use plans. For example, the
study might include: (i) extent of immediate economic benefits for the
city/region/nation in proportion to total investment in the exposition;
(ii) extent of long range economic benefits for the city/region/nation
in proportion to total investment in the exposition; and (iii) extent
of intangible (social, psychological, ''good will'') benefits accruing
to the city/region/nation including the solution or amelioration of any
national/local problems.
13. Exhibit No. 13. A statement committing the applicant to develop
and complete an environmental impact statement which complies with
section 102(2)(c) of the National Environmental Policy Act of 1969 (83
Stat. 852; 42 U.S.C. 4331). Sample copies of environmental impact
statements may be obtained from the Director. Prior to the Director's
submitting a report to the Secretary containing his findings on the
application for Federal recognition pursuant to 310.4, the applicant
must have completed the required Environmental Impact Statement (EIS),
in a form acceptable to the Department of Commerce.
14. Exhibit No. 14. A detailed set of general and special rules and
regulations governing the exposition and participation in it, which, if
Federal recognition is obtained, can be used by the Federal Government
in seeking BIE registration.
15. Exhibit No. 15. A statement from the applicant agreeing to
accept a U.S. Commissioner General, appointed by the President. He will
be recognized as the senior Federal official and titular head of the
exposition, final arbiter in disputes with exhibitors, and the official
contact with foreign governments. The applicant should also agree to
furnish the Commissioner General and his staff with suitable facilities
in the host community during the development and operation of the
exposition.
(40 FR 34107, Aug. 14, 1975. Redesignated and amended at 46 FR 57457,
Nov. 24, 1981)
15 CFR 310.4 Action on application.
(a) Upon receipt of an application, the Director will analyze the
application and all accompanying exhibits to insure compliance with the
provisions of 310.3 and report his findings with respect thereto to the
Secretary.
(b) If more than one applicant applies for Federal recognition for
expositions to be held within three years or less of each other, the
applications will be reviewed concurrently by the Director. The
following standards will be considered in determining which if any of
the competing applicants will be recommended for Federal recognition:
(1) The order of receipt of the applications by the Director,
complete with all exhibits required by 310.3.
(2) The financial plans of the applications. Primary consideration
will be given to those applications which do not require Federal
financing for exposition development. This does not extend to funding
for a Federal pavilion, if one is desired.
(3) The relative merit of the applications in terms of their
qualifications as tourism destination sites, both with respect to
existing facilities and those facilities planned for the proposed
exposition. If necessary, to assist in making this determination, the
Director will appoint a panel of travel industry experts representing
tour developers, the transportation, entertainment and hotel/motel
industries for the purpose of studying the competing applications and
reporting to the Director its views as to which proposed site best meets
the above criteria. If such a panel is deemed necessary, the provisions
of the Federal Advisory Committee Act (86 Stat. 770, 5 U.S.C. App. I)
will be applicable.
(c) In analyzing the applications, the Director may hold public
hearings with the objective of clarifying issues that might be raised by
the application. If desired, the Director may utilize the services of
an examiner.
(d) If the Director, in his discretion, decides to hold a public
hearing, notice of such hearing shall be published in the Federal
Register, and a copy of the notice shall be furnished to local
newspapers. The notice shall state the subject to be considered and
when and where the hearing will be held, specifically designating the
date, hour, and place.
(e) The following general procedure shall govern the conduct of
public hearings: (1) Stenographic minutes of the proceedings shall be
made; (2) the names and addresses of all parties present or represented
at the hearing shall be recorded; and (3) the Director or Examiner
shall read aloud for the record and for the benefit of the public such
parts of the Act and of these regulations as bear on the application.
He shall also read aloud for the record and for the benefit of the
public such other important papers, or extracts therefrom, as may be
necessary for a full understanding of the issues which require
clarification. The Director or Examiner shall impress upon the parties
in attendance at the public hearing, and shall specifically state at the
commencement of the hearing, that the hearing is not adversary in nature
and that the sole objective thereof is to clarify issues that might have
been raised by the application.
(f) Statements of interested parties may be presented orally at the
hearing, or submitted in writing for the record.
(g) Within six months after receipt of a fully completed application
and/or the adjournment of the public hearing, the Director shall submit
his report containing his findings on the application to the Secretary.
15 CFR 310.5 Report of the Secretary on Federal recognition.
If the Director's report recommends Federal recognition, the
Secretary, within a reasonable time, shall submit a report to the
President.
(a) The Secretary's report shall include: (1) An evaluation of the
purposes and reasons for the exposition; and (2) a determination as to
whether guaranteed financial and other support has been secured by the
exposition from affected State and local governments and from business
and civic leaders of the region and others in amounts sufficient to
assure the successful development and progress of the exposition.
(b) Based on information from, and coordination with the Department
of Commerce the Secretary of State shall also file a report with the
President that the exposition qualifies for recognition by the BIE.
15 CFR 310.6 Recognition by the President.
If the President concurs in the favorable reports from the
Secretaries of State and Commerce, he may grant Federal recognition to
the exposition by indicating his concurrence to the two Secretaries and
authorizing them to seek BIE registration.
15 CFR 310.7 Statement for Federal participation.
If Federal participation in the exposition, as well as Federal
recognition thereof is desired, the applicant shall in a statement to
the Director outline the nature of the Federal participation envisioned,
including whether construction of a Federal pavilion is contemplated.
(It should be noted, however, that before Federal participation can be
authorized by the Congress under the Act, the exposition must have (i)
met the criteria for Federal recognition and be so recognized, and (ii)
been registered by the BIE. Although applicants need not submit such a
statement until these prerequisites are satisfied, they are encouraged
to do so.) Where the desired Federal participation includes a request
for construction of a Federal pavilion, the statement shall be
accompanied by the following exhibits:
1. Exhibit No. 1. A survey drawing of the proposed Federal pavilion
site, showing its areas and boundaries, its grade elevations, and
surface and subsoil conditions.
2. Exhibit No. 2. Evidence of resolutions, statutes, opinions, etc.,
as to the applicant's ability to convey by deed the real property
comprising the proposed Federal pavilion site in fee-simple and free of
liens and encumbrances to the Federal Government. The only
consideration on the part of the Government for the conveyance of the
property shall be the Government's commitment to participate in the
exposition.
3. Exhibit No. 3. A certified copy of the building code which would
be applicable should a pavilion be constructed.
4. Exhibit No. 4. An engineering drawing showing the accessibility
of the proposed pavilion site to utilities (e.g., sewerage, water, gas,
electricity, etc.).
5. Exhibit No. 5. A statement setting forth the security and
maintenance and arrangements which the applicant would undertake (and an
estimate of their cost) while a pavilion is under construction.
6. Exhibit No. 6. A study pursuant to Executive Order 11296 of
August 10, 1966, entitled ''Evaluation of flood hazard in locating
Federally owned or financed buildings, roads and other facilities and in
disposing of Federal land and properties.''
15 CFR 310.8 Proposed plan for Federal participation.
(a) Upon receipt of the statement, and the exhibits referred to in
310.7, the Director shall prepare a proposed plan in cooperation with
other interested departments and agencies of the Federal Government for
Federal participation in the exposition.
(b) In preparing the proposed plan for Federal participation in the
exposition, the Director shall conduct a feasibility study of Federal
participation including cost estimates by utilizing the services within
the Federal Government, professional consultants and private sources as
required and in accordance with applicable laws and regulations.
(c) The Director, in the proposed plan for Federal participation in
the exposition, shall determine whether or not a Federal pavilion should
be constructed and, if so, whether or not the Government would have need
for a permanent structure in the area of the exposition or whether a
temporary structure would be more appropriate.
(d) The Director shall seek the advice of the Administrator of the
General Services Administration to the extent necessary in carrying out
the proposed plan for Federal participation in the exposition.
(e) Upon completion of the proposed plan for Federal participation in
the exposition, the Director shall submit the plan to the Secretary.
15 CFR 310.9 Report of the Secretary on Federal participation.
Upon receipt of the Director's proposed plan for Federal
participation, the Secretary, within a reasonable time, shall submit a
report to the President including: (a) Evidence that the exposition has
met the criteria for Federal recognition and has been so recognized;
(b) a statement that the exposition has been registered by the BIE; and
(c) a proposed plan for the Federal participation referred to in 310.8.
15 CFR 310.9 PART 315 -- DETERMINATION OF BONA FIDE MOTOR-VEHICLE
MANUFACTURER
Sec.
315.1 Scope and purpose.
315.2 Definitions.
315.3 Application.
315.4 Determination by the Under Secretary.
315.5 Maintenance and publication of a list of bona fide
motor-vehicle manufacturers.
Authority: Headnote 2, subpart B, part 6, schedule 6, Tariff
Schedules of the United States (19 U.S.C. 1202); sec. 501(2) of Title
V, Automotive Products Trade Act of 1965 (19 U.S.C. 2031).
Source: 45 FR 42214, June 23, 1980. Redesignated at 53 FR 52115,
Dec. 27, 1988, unless otherwise noted.
15 CFR 315.1 Scope and purpose.
The purpose of this part is to set forth regulations implementing
headnote 2 to subpart B, part 6, schedule 6 of the Tariff Schedules of
the United States as proclaimed by Proclamation No. 3682 of October 21,
1965 (3 CFR 140-65 Comp.). issued pursuant to the Automotive Products
Trade Act of 1965 (19 U.S.C. 2031), by establishing a procedure under
which a person may apply to be determined a bona fide motor-vehicle
manufacturer. Under headnote 2 to subpart B, part 6, schedule 6 of the
Tariff Schedules of the United States, whenever the Secretary of
Commerce has determined a person to be a bona fide motor-vehicle
manufacturer, such person is eligible to obtain duty-free importation of
certain Canadian articles and to issue certain orders, contracts, or
letters of intent under or pursuant to which other persons, not
themselves bona fide motor-vehicle manufacturers, may obtain duty-free
treatment for such Canadian articles. The responsibilities of Secretary
of Commerce relating to the development, maintenance and publication of
a list of bona fide motor-vehicle manufacturers and the authority to
promulgate rules and regulations pertaining thereto have been delegated
to Under Secretary for International Trade, Department of Commerce
pursuant to Department of Commerce Organization Order 40-1, Amendment 9
of January 22, 1984 (49 FR 4538).
(45 FR 42214, June 23, 1980. Redesignated and amended at 53 FR 52115,
Dec. 27, 1988)
15 CFR 315.2 Definitions.
For the purpose of the regulations in this part and the forms issued
to implement it:
(a) Act means the Automotive Products Trade Act of 1965 (79 Stat.
1016, 19 U.S.C. 2001 through 2033).
(b) Under Secretary means Under Secretary for International Trade of
the Department of Commerce, or such official as may be designated by the
Under Secretary to act in his or her behalf.
(c) Motor vehicle means a motor vehicle of a kind described in item
692.05 or 692.10 of subpart B, part 6, schedule 6, of the Tariff
Schedules of the United States (excluding an electric trolley bus and a
three-wheeled vehicle) or an automotive truck tractor.
(d) Bona fide motor-vehicle manufacturer means a person who upon
application to the Under Secretary is determined by the Under Secretary
to have produced no fewer than 15 complete motor vehicles in the United
States during the 12-month period preceding the date certified in the
application, and to have had as of such date installed capacity in the
United States to produce 10 or more complete motor vehicles per 40-hour
week. A person shall only be regarded as having had the capacity to
produce a complete motor vehicle if his operation included the assembly
of two or more major components (e.g., the attachment of a body to a
chassis) to create a new motor vehicle ready for use.
(e) Person includes any individual, corporation, partnership,
association, company, or any kind of organization.
(f) United States includes only the States, the District of Columbia
and Puerto Rico.
(45 FR 42214, June 23, 1980. Redesignated and amended at 53 FR 52115,
Dec. 27, 1988)
15 CFR 315.3 Application.
Any person in the United States desiring to be determined a bona fide
motor vehicle manufacturer shall apply to the Under Secretary by filing
two copies of Form BIE-3 in accordance with the instructions set forth
on the form and this part. Application forms may be obtained from the
Under Secretary, District offices of the U.S. Department of Commerce,
or from U.S. Collectors of Customs, and should be mailed or delivered to
the:
U.S. Department of Commerce, International Trade Administration,
Office of Automotive Industry Affairs -- APTA, 14th and Constitution
Avenue, NW., Room 4036, Washington, DC 20230.
(45 FR 42214, June 23, 1980. Redesignated and amended at 53 FR 52115,
Dec. 27, 1988)
15 CFR 315.4 Determination by the Under Secretary.
(a) As soon as practicable after receipt of the application, the
Under Secretary shall determine whether an applicant has produced no
fewer than 15 complete motor vehicles in the United States during the
12-month period preceding the date certified in the application and as
of such date, had installed capacity in the United States to produce 10
or more complete motor vehicles per 40 hour week. The Under Secretary
may request such additional data from an applicant as he may deem
appropriate to establish whether the applicant has satisfied the
requirements of this part.
(b) A determination by the Under Secretary under this part shall be
effective for a 12-month period to begin on the date as of which the
Under Secretary determines that the applicant qualified under this part.
Within 60 days prior to the termination of such period, a bona fide
motor vehicle manufacturer may apply for another determination under
this part.
(c) The Under Secretary will promptly notify each applicant in
writing of the final action taken on his application.
(45 FR 42214, June 23, 1980. Redesignated and amended at 53 FR 52115,
Dec. 27, 1988)
15 CFR 315.5 Maintenance and publication of a list of bona fide
motor-vehicle manufacturers.
The Under Secretary shall maintain and publish from time to time in
the Federal Register, a list of the names and addresses of bona fide
motor vehicle manufacturers, and the effective dates from each
determination.
(45 FR 42214, June 23, 1980. Redesignated and amended at 53 FR 52115,
Dec. 27, 1988)
15 CFR 315.5 PART 325 -- EXPORT TRADE CERTIFICATES OF REVIEW
Sec.
325.1 Scope.
325.2 Definitions.
325.3 Applying for a certificate of review.
325.4 Calculating time periods.
325.5 Issuing the certificate.
325.6 Publishing notices in the Federal Register.
325.7 Amending the certificate.
325.8 Expediting the certification process.
325.9 Reconsidering an application that has been denied.
325.10 Modifying or revoking a certificate.
325.11 Judicial review.
325.12 Returning the applicant's documents.
325.13 Nonadmissibility in evidence.
325.14 Submitting reports.
325.15 Relinquishing a certificate.
325.16 Protecting confidentiality of information.
325.17 Waiver.
Authority: Title III of the Export Trading Company Act, Pub. L.
97-290 (96 Stat. 1240-1245, 15 U.S.C. 4011-4021).
Source: 50 FR 1806, Jan. 11, 1985, unless otherwise noted.
15 CFR 325.1 Scope.
This part contains regulations for issuing export trade certificates
of review under Title III of the Export Trading Company Act, Pub. L.
97-290. A holder of a certificate of review and the members named in the
certificate will have specific protections from private treble damage
actions and government criminal and civil suits under U.S. Federal and
State antitrust laws for the export conduct specified in the certificate
and carried out during its effective period in compliance with its terms
and conditions.
15 CFR 325.2 Definitions.
As used in this part:
(a) Act means Title III of Pub. L. 97-290, Export Trade Certificates
of Review.
(b) Antitrust laws means the antitrust laws, as the term is defined
in the first section of the Clayton Act (15 U.S.C. 12), section 5 of the
Federal Trade Commission Act (15 U.S.C. 45) (to the extent that section
5 prohibits unfair methods of competition), and any State antitrust or
unfair competition law.
(c) Applicant means the person or persons who submit an application
for a certificate.
(d) Application means an application for a certificate to be issued
under the Act.
(e) Attorney General means the Attorney General of the United States
or his designee.
(f) Certificate means a certificate of review issued pursuant to the
Act.
(g) Control means either (1) holding 50 percent or more of the
outstanding voting securities of an issuer; or (2) having the
contractual power presently to designate a majority of the directors of
a corporation, or in the case of an unincorporated entity, a majority of
the individuals who exercise similar functions.
(h) Controlling entity means an entity which directly or indirectly
controls a member or applicant, and is not controlled by any other
entity.
(i) Export conduct means specified export trade activities and
methods of operation carried out in specified export trade and export
markets.
(j) Export trade means trade or commerce in goods, wares,
merchandise, or services that are exported, or are in the course of
being exported, from the United States or any territory of the United
States to any foreign nation.
(k) Export trade activities means activities or agreements in the
course of export trade.
(l) Member means an entity (U.S. or foreign) or a person which is
seeking protection under the certificate with the applicant. A member
may be a partner in a partnership or a joint venture; a shareholder of
a corporation; or a participant in an association, cooperative, or
other form of profit or nonprofit organization or relationship, by
contract or other arrangement.
(m) Method of operation means any method by which an applicant or
member conducts or proposes to conduct export trade.
(n) Person means an individual who is a resident of the United
States; a partnership that is created under and exists pursuant to the
laws of any State or of the United States; a State or local government
entity; a corporation, whether it is organized as a profit or nonprofit
corporation, that is created under and exists pursuant to the laws of
any State or of the United States; or any association or combination,
by contract or other arrangement, between or among such persons.
(o) Secretary means the Secretary of Commerce or his designee.
(p) Services means intangible economic output, including, but not
limited to --
(1) business, repair, and amusement services,
(2) management, legal, engineering, architectural, and other
professional services, and
(3) financial, insurance, transportation, informational and any other
data-based services, and communication services.
(q) United States means the fifty States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands.
15 CFR 325.3 Applying for a certificate of review.
(a) Place of filing. The applicant shall submit an original and two
copies of a completed application form (ITA 4093-P, OMB control number
0625-0125) by personal delivery during normal business hours or by first
class mail to the Office of Export Trading Company Affairs, Room 5618,
International Trade Administration, Department of Commerce, Washington,
DC 20230. Although not required, the applicant should consider using
registered mail or some other delivery method that provides evidence of
receipt.
(b) Contents of application. Any person may submit an application
for certification. The application shall contain, where applicable, the
information listed below. Some information, in particular the
identification of goods or services that the applicant exports or
proposes to export, is requested in a certain form (Standard Industrial
Classification (SIC) numbers) if reasonably available. Where
information does not exist in this form, the applicant may satisfy the
request for information by providing it in some other convenient form.
If the applicant is unable to provide any of the information requested
or if the applicant believes that any of the information requested would
be both burdensome to obtain and unnecessary for a determination on the
application, the applicant should state that the information is not
being provided or is being provided in lesser detail, and explain why.
(1) Name and principal address of the applicant and of its
controlling entity, if any. Include the name, title, address, telephone
number, and relationship to the applicant of each individual to whom the
Secretary should address correspondence.
(2) The name and principal address of each member, and of each
member's controlling entity, if any.
(3) A copy of any legal instrument under which the applicant is
organized or will operate. Include copies, as applicable, of its
corporate charter, bylaws, partnership, joint venture, membership or
other agreements or contracts under which the applicant is organized.
(4) A copy of the applicant's most recent annual report, if any, and
that of its controlling entity, if any. To the extent the information
is not included in the annual report, or other documents submitted in
connection with the application, a description of the applicant's
domestic (including import) and export operations, including the nature
of its business, the types of products or services in which it deals,
and the places where it does business. This description may be
supplemented by a chart or table.
(5) A copy of each member's most recent annual report, if any, and
that of its controlling entity, if any. To the extent the information
is not included in the annual report, or other documents submitted in
connection with the application, a description of each member's domestic
(including import) and export operations, including the nature of its
business, the types of products or services in which it deals, and the
places where it does business. This description may be supplemented by
a chart or table.
(6) The names, titles, and responsibilities of the applicant's
directors, officers, partners and managing officials, and their business
affiliations with other members or other businesses that produce or sell
any of the types of goods or services described in paragraph (b)(7) of
this section.
(7)(i) A description of the goods or services which the applicant
exports or proposes to export under the certificate of review. This
description should reflect the industry's customary definitions of the
products and services.
(ii) If it is reasonably available, an identification of the goods or
services according to the Standard Industrial Classification (SIC)
number. Goods should normally be identified according to the 7-digit
level. Services should normally be identified at the most detailed SIC
level available.
(iii) The foreign geographic areas to which the applicant and each
member export or intend to export their goods and services.
(8) For each class of the goods, wares, merchandise or services
described in paragraph (b)(7) of this section:
(i) The principal geographic area or areas in the United States in
which the applicant and each member sell their goods and services.
(ii) For their previous two fiscal years, the dollar value of the
applicant's and each member's (A) total domestic sales, if any; and (B)
total export sales, if any. Include the value of the sales of any
controlling entities and all entities under their control.
(9) For each class of the goods, wares, merchandise or services
described in paragraph (b)(7) of this section, the best information or
estimate accessible to the applicant of the total value of sales in the
United States by all companies for the last two years. Identify the
source of the information or the basis of the estimate.
(10) A description of the specific export conduct which the applicant
seeks to have certified. Only the specific export conduct described in
the application will be eligible for certification. For each item, the
applicant should state the antitrust concern, if any, raised by that
export conduct. (Examples of export conduct which applicants may seek
to have certified include the manner in which goods and services will be
obtained or provided; the manner in which prices or quantities will be
set; exclusive agreements with U.S. suppliers or export
intermediaries; territorial, quantity, or price agreements with U.S.
suppliers or export intermediaries; and restrictions on membership or
membership withdrawal. These examples are given only to illustrate the
type of export conduct which might be of concern. The specific
activities which the applicant may wish to have certified will depend on
its particular circumstances or business plans.).
(11) If the export trade, export trade activities, or methods of
operation for which certification is sought will involve any agreement
or any exchange of information among suppliers of the same or similar
products or services with respect to domestic prices, production, sales,
or other competitively sensitive business information, specify the
nature of the agreement or exchange of information. Such information
exchanges are not necessarily impermissible and may be eligible for
certification. Whether or not certification is sought for such
exchanges, this information is necessary to evaluate whether the conduct
for which certification is sought meets the standards of the Act.
(12) A statement of whether the applicant intends or reasonably
expects that any exported goods or services covered by the proposed
certificate will re-enter the United States, either in their original or
modified form. If so, identify the goods or services and the manner in
which they may re-enter the U.S.
(13) The names and addresses of the suppliers of the goods and
services to be exported (and the goods and services to be supplied by
each) unless the goods and services to be exported are to be supplied by
the applicant and/or its members.
(14) A proposed non-confidential summary of the export conduct for
which certification is sought. This summary may be used as the basis
for publication in the Federal Register.
(15) Any other information that the applicant believes will be
necessary or helpful to a determination of whether to issue a
certificate under the standards of the Act.
(16) (Optional) A draft proposed certificate.
(c) The applicant must sign the application and certify that (1) each
member has authorized the applicant to submit the application, and (2)
to the best of its belief the information in the application is true,
correct, and fully responsive.
(d) Conformity with regulations. No application shall be deemed
submitted unless it complies with these regulations. Applicants are
encouraged to seek guidance and assistance from the Department of
Commerce in preparing and documenting their applications.
(e) Review and acceptance. The Secretary will stamp the application
on the day that it is received in the Office of Export Trading Company
Affairs. From that date, the Secretary will have five working days to
decide whether the application is complete and can be deemed submitted
under the Act. On the date on which the application is deemed
submitted, the Secretary will stamp it with that date and notify the
applicant that the application has been accepted for review. If the
application is not accepted for review, the Secretary shall advise the
applicant that it may file the application again after correcting the
deficiencies that the Secretary has specified. If the Secretary does
not take action on the application within the five-day period, the
application shall be deemed submitted as of the sixth day.
(f) Withdrawal of application. The applicant may withdraw an
application by written request at any time before the Secretary has
determined whether to issue a certificate. An applicant who withdraws
an application may submit a new application at any time.
(g) Supplemental information. After an application has been deemed
submitted, if the Secretary or the Attorney General finds that
additional information is necessary to make a determination on the
application, the Secretary will ask the applicant in writing to supply
the supplemental information. The running of the time period for a
determination on the application will be suspended from the date on
which the request is sent until the supplemental information is received
and is considered complete. The Secretary shall promptly decide whether
the supplemental information is complete, and shall notify the applicant
of his decision. If the information is being sought by the Attorney
General, the supplemental information may be deemed complete only if the
Attorney General concurs. If the applicant does not agree to provide
the additional information, or supplies information which the Secretary
or the Attorney General considers incomplete, the Secretary and the
Attorney General will decide whether the information in their possession
is sufficient to make a determination on the application. If either the
Secretary or the Attorney General considers the information in their
possession insufficient, the Secretary may make an additional request or
shall deny the application. If they consider the information in their
possession sufficient to make a determination on the application, the
Secretary shall notify the applicant that the time period for a
determination has resumed running.
(Information collection requirements in paragraph (a) approved by the
Office of Management and Budget under control number 0625-0125)
15 CFR 325.4 Calculating time periods.
(a) When these regulations require action to be taken within a fixed
time period, and the last day of the time period falls on a non-working
day, the time period shall be extended to the next working day.
(b) The day after an application is deemed submitted shall be deemed
the first of the days within which the Secretary must make a
determination on the application.
15 CFR 325.5 Issuing the certificate.
(a) Time period. The Secretary shall determine whether to issue a
certificate within ninety days after the application is deemed submitted
(excluding any suspension pursuant to 325.3(f) of the time period for
making a determination). If the Secretary or the Attorney General
considers it necessary, and the applicant agrees, the Secretary may take
up to an additional thirty days to determine whether to issue a
certificate.
(b) Determination. The Secretary shall issue a certificate to the
applicant if he determines, and the Attorney General concurs, that the
proposed export trade, export trade activities and methods of operation
will --
(1) Result in neither a substantial lessening of competition or
restraint of trade within the United States nor a substantial restraint
of the export trade of any competitor of the applicant;
(2) Not unreasonably enhance, stabilize, or depress prices within the
United States of the class of the goods, wares, merchandise or services
exported by the applicant;
(3) Not constitute unfair methods of competition against competitors
who are engaged in the export of goods, wares, merchandise or services
of the class exported by the applicant; and
(4) Not include any act that may reasonably be expected to result in
the sale for consumption or resale within the United States of the
goods, wares, merchandise, or services exported by the applicant.
(c) Concurrence of the Attorney General. (1) Not later than seven
days after an application is deemed submitted, the Secretary shall
deliver to the Attorney General a copy of the application, any
information submitted in connection with the application, and any other
relevant information in his possession. The Secretary and the Attorney
General shall make available to each other copies of other relevant
information that was obtained in connection with the application, unless
otherwise prohibited by law.
(2) Not later than thirty days before the day a determination on the
application is due, the Secretary shall deliver a proposed certificate
to the Attorney General for discussion and comment. If the Attorney
General does not agree that the proposed certificate may be issued, he
shall, not later than ten days before the day a determination on the
application is due, so advise the Secretary and state the reasons for
the disagreement. The Secretary with the concurrence of the Attorney
General, may modify or revise the proposed certificate to resolve the
objections and problems raised by the Attorney General, or deny the
application.
(3) If the Attorney General receives the proposed certification by
the date specified in the preceding paragraph and does not respond
within the time period specified in that paragraph, he shall be deemed
to concur in the proposed certificate.
(d) Content of certificate. The certificate shall specify the export
conduct and all persons or entities which are protected from liability
under the antitrust laws. The Secretary may certify the proposed export
conduct contained in the application, in whole or in part, with such
changes, modifications, terms, or conditions as are appropriate. If the
Secretary intends to issue a certificate different from a draft
certificate submitted by the applicant, the Secretary shall first
consult with the applicant.
(e) Certificate obtained by fraud. A certificate shall be void ab
initio with respect to any export conduct for which a certificate was
obtained by fraud.
(f) Minimum thirty-day period. The Secretary may not issue a
certificate until thirty days after the summary of the application is
published in the Federal Register.
15 CFR 325.6 Publishing notices in the Federal Register.
(a) Within ten days after an application is deemed submitted, the
Secretary shall deliver to the Federal Register a notice summarizing the
application. The notice shall identify the applicant and each member
and shall include a summary of the export conduct for which
certification is sought. If the Secretary does not intene to publish
the summary proposed by the applicant, he shall notify the applicant.
Within twenty days after the date the notice is published in the Federal
Register, interested parties may submit written comments to the
Secretary on the application. The Secretary shall provide a copy of
such comments to the Attorney General.
(b) If a certificate is issued, the Secretary shall publish a summary
of the certification in the Federal Register. If an application is
denied, the Secretary shall publish a notice of denial. Certificates
will be available for inspection and copying in the International Trade
Administration Freedom of Information Records Inspection Facility.
(c) If the Secretary initiates proceedings to revoke or modify a
certificate, he shall publish a notice of his final determination in the
Federal Register.
(d) If the applicant requests reconsideration of a determination to
deny an application, in whole or in part, the Secretary shall publish
notice of his final determination in the Federal Register.
15 CFR 325.7 Amending the certificate.
An application for an amendment to a certificate shall be treated in
the same manner as an original application. The application for an
amendment shall set forth the proposed amendment(s) and the reasons for
them. It shall contain any information specified in 325.3(b) that is
relevant to the determination on the application for an amendment. The
effective date of an amendment will be the date on which the application
for the amendment was deemed submitted.
15 CFR 325.8 Expediting the certification process.
(a) Request for expedited action. (1) An applicant may be granted
expedited action on its application in the discretion of the Secretary
and the Attorney General. The Secretary and the Attorney General will
consider such requests in light of an applicant's showing that it has a
special need for a prompt decision. A request for expedited action
should include an explanation of why expedited action is needed,
including a statement of all relevant facts and circumstances, such as
bidding deadlines or other circumstances beyond the control of the
applicant, that require the applicant to act in less than ninety days
and that have a significant impact on the applicant's export trade.
(2) The Secretary shall advise the applicant within ten days after
the application is deemed submitted whether it will receive expedited
action. The Secretary may grant the request in whole or in part and
process the remainder of the application through the normal procedures.
Expedited action may be granted only if the Attorney General concurs.
(b) Time period. The Secretary shall determine whether to issue a
certificate to the applicant within forty-five days after the Secretary
granted the request for expedited action, or within a longer period if
agreed to by the applicant (excluding any suspension pursuant to
325.3(f) of the time period for making a determination). The Secretary
may not issue a certificate until thirty days after the summary of the
application is published in the Federal Register.
(c) Concurrence of the Attorney General. (1) Not later than ten
working days before the date on which a determination on the application
is due, the Secretary shall deliver a proposed certificate to the
Attorney General for discussion and comment. If the Attorney General
does not agree that the proposed certificate may be issued, he shall,
not later than five working days before the date on which a
determination on the application is due, so advise the Secretary and
state the reasons for the disagreement. The Secretary, with the
concurrence of the Attorney General, may revise the proposed certificate
to resolve the objections and problems raised by the Attorney General,
or deny the application.
(2) If the Attorney General receives the proposed certificate by the
date specified in the preceding paragraph and does not respond within
the time period specified in that paragraph, he shall be deemed to
concur in the proposed certificate.
(Information collection requirements in paragraph (a)(1) approved by
the Office of Management and Budget under control number 0625-0125)
15 CFR 325.9 Reconsidering an application that has been denied.
(a) If the Secretary determines to deny an application in whole or in
part, he shall notify the applicant in writing of his decision and the
reasons for his determination.
(b) Within thirty days after receiving a notice of denial, the
applicant may request the Secretary to reconsider his determination.
(1) The request for reconsideration shall include a written statement
setting forth the reasons why the applicant believes the decision should
be reconsidered, and any additional information that the applicant
considers relevant.
(2) Upon the request of the applicant, the Secretary and the Attorney
General will meet informally with the applicant and/or his
representative to discuss the applicant's reasons why the determination
on the application should be changed.
(c) The Secretary shall consult with the Attorney General with regard
to reconsidering an application. The Secretary may modify his original
determination only if the Attorney General concurs.
(d) The Secretary shall notify the applicant in writing of his final
determination after reconsideration and of his reasons for the
determination within thirty days after the request for reconsideration
has been received.
15 CFR 325.10 Modifying or revoking a certificate.
(a) Action subject to modification or revocation. The Secretary
shall revoke a certificate, in whole or in part, or modify it, as the
Secretary or the Attorney General considers necessary, if:
(1) The export conduct of a person or entity protected by the
certificate no longer complies with the requirements set forth in
325.4(b);
(2) A person or entity protected by the certificate fails to comply
with a request for information under paragraph (b) of this section; or
(3) The certificate holder fails to file a complete annual report.
(b) Request for information. If the Secretary or the Attorney
General has reason to believe that the export trade, export trade
activities, or methods of operation of a person or entity protected by a
certificate no longer comply with the requirements set forth in
325.4(b), the Secretary shall request any information that he or the
Attorney General considers to be necessary to resolve the matter.
(c) Proceedings for the revocation or modification of a certificate
-- (1) Notification letter. If, after reviewing the relevent
information in their possession, it appears to the Secretary or the
Attorney General that a certificate should be revoked or modified for
any of the reasons set forth in paragraph (a) above, the Secretary shall
so notify the certificate holder in writing. The notification shall be
sent by registered or certified mail to the address specified in the
certificate. The notification shall include a detailed statement of the
facts, conduct, or circumstances which may warrant the revocation or
modification of the certificate.
(2) Answer. The certificate holder shall respond to the notification
letter within thirty days after receiving it, unless the Secretary, in
his discretion, grants a thirty day extension for good cause shown. The
certificate holder shall respond specifically to the statement included
with the notification letter and state in detail why the facts, conduct
or circumstances described in the notification letter are not true, or
if they are true, why they do not warrant the revoking or modifying of
the certificate. If the certificate holder does not respond within the
specified period, it will be considered an admission of the statements
contained in the notification letter.
(3) Resolution of factual disputes. Where material facts are in
dispute, the Secretary and the Attorney General shall, upon request,
meet informally with the certificate holder. The Secretary or the
Attorney General may require the certificate holder to provide any
documents or information that are necessary to support its contentions.
After reviewing the statements of the certificate holder and the
documents or information that the certificate holder has submitted, and
upon considering other relevant documents or information in his
possession, the Secretary shall make proposed findings of the factual
matters in dispute. The Attorney General is not bound by the proposed
findings.
(4) Final determination. The Secretary and the Attorney General
shall review the notification letter and the certificate holder's answer
to it, the proposed factual findings made under paragraph (c)(3) of this
section, and any other relevant documents or information in their
possession. If, after review, the Secretary or the Attorney General
determines that the export conduct of a person or entity protected by
the certificate no longer complies with the standards set forth in
325.4(b), the Secretary shall revoke or modify the certificate as
appropriate. If the Secretary or the Attorney General determines that
the certificate holder has failed to comply with the request for
information under paragraph (b) of this section, or has failed to file a
complete annual report, and that the failure to comply or file should
result in revocation of modification, the Secretary shall revoke or
modify the certificate as appropriate. The determination will be final
and will be issued to the certificate holder in writing. The notice to
the certificate holder shall include a statement of the circumstances
underlying and the reasons in support of the determination. If the
Secretary determines to revoke or modify the certificate, the decision
shall specify the effective date of the revocation or modification;
this date must be at least thirty days but not more than ninety days
after the Secretary notifies the certificate holder of his
determination. The Secretary shall publish notice in the Federal
Register of a revocation or modification or a decision not to revoke or
modify.
(d) Investigative information. In proceedings under this section,
the Attorney General shall make available to the Secretary any
information that has been obtained in response to Civil Investigative
Demands issued under section 304(b)(3) of the Act. Unless prohibited by
law, the Attorney General and the Secretary shall also make available to
each other any other information which each is relying upon under these
proceedings.
15 CFR 325.11 Judicial review.
(a) Review of certain determinations. (1) Any person aggrieved by a
final determination of the Secretary under 325.5, 325.7, 325.9, or
325.10 of these regulations may, within thirty days of the
determination, bring an action in an appropriate district court of the
United States to set aside the determination on the ground that it is
erroneous. If a certificate is denied, the applicant may bring suit
within thirty days after the notice of denial is published in the
Federal Register, or, if the applicant seeks reconsideration, within
thirty days after the Secretary publishes in the Federal Register notice
of his determination after reconsideration.
(b) For purposes of judicial review, determinations of the Secretary
are final when notice is published in the Federal Register.
(c) Record for judicial review. For purposes of judicial review, the
record shall include all information presented to or obtained by the
Secretary which had a bearing on the determination, the determination
itself, the supporting statement setting forth the reasons for the
determination, and the Attorney General's response to the Secretary
indicating concurrence or nonconcurrence.
(d) Limitation of judicial review. Except as provided in paragraph
(a) of this section, no agency action taken under the Act shall be
subject to judicial review.
15 CFR 325.12 Returning the applicant's documents.
(a) Upon the denial or withdrawal of an application for a certificate
in its entirety, the applicant may request the return of all copies of
the documents submitted by the applicant in connection with the
application to the Department of Commerce or the Department of Justice.
The applicant shall submit this request in writing to both the Secretary
and the Attorney General.
(b) The Secretary and the Attorney General shall return the documents
to the applicant within thirty days after they receive the applicant's
request.
15 CFR 325.13 Nonadmissibility in evidence.
If the Secretary denies, in whole or in part, an application for a
certificate or for an amendment to a certificate, or revokes or amends a
certificate, neither the negative determination nor the statement of
reasons therefor shall be admissible in evidence in any administrative
or judicial proceeding in support of any claim under the antitrust laws.
15 CFR 325.14 Submitting reports.
(a) Not later than each anniversary of a certificate's effective
date, the Secretary shall notify the certificate holder of the
information to be included in the annual report. This report shall
contain any changes relevant to the matters specified in the
certificate, an update of the information contained in the application
brought current to the anniversary date, and any other information the
Secretary considers appropriate, after consultation with the Attorney
General.
(b) Not later than forty-five days after each anniversary of a
certificate's effective date, a certificate holder shall submit its
annual report to the Secretary. The Secretary shall deliver a copy of
the annual report to the Attorney General.
(c) Failure to submit a complete annual report may be the basis for
modification or revocation of a certificate.
15 CFR 325.15 Relinquishing a certificate.
A certificate holder may relinquish a certificate at any time through
written notice to the Secretary. The certificate will cease to be
effective on the day the Secretary receives the notice.
15 CFR 325.16 Protecting confidentiality of information.
(a) Any information that is submitted by any person under the Act is
exempt from disclosure under the Freedom of Information Act (5 U.S.C.
552).
(b)(1) Except as authorized under paragraph (b)(3) of this section,
no officer or employee of the United States shall disclose commercial or
financial information submitted under this Act if the information is
privileged or confidential, and if disclosing the information would
cause harm to the person who submitted it.
(2) A person submitting information shall designate the documents or
information which it considers privileged or confidential and the
disclosure of which would cause harm to the person submitting it. The
Secretary shall endeavor to notify these persons of any requests or
demands before disclosing any of this information.
(3) An officer or employee of the United States may disclose
information covered under paragraph (b)(1) of this section only under
the following circumstances --
(i) Upon a request made by either House of Congress or a Committee of
the Congress,
(ii) In a judicial or administrative proceeding subject to issuance
of an appropriate protective order,
(iii) With the written consent of the person who submitted the
information,
(iv) When the Secretary considers disclosure of the information to be
necessary for determining whether or not to issue, amend, or revoke a
certificate, if --
(A) The Secretary determines that a non-confidential summary of the
information is inadequate; and
(B) The person who submitted the information is informed of the
intent to disclose the information, and has an opportunity to advise the
Secretary of the potential harm which disclosure may cause,
(v) In accordance with any requirement imposed by a statute of the
United States.
(c) In any judicial or administrative proceeding in which disclosure
is sought from the Secretary or the Attorney General of any confidential
or privileged documents or information submitted under this Act, the
Secretary or Attorney General shall attempt to notify the party who
submitted the information of the request or demand for disclosure. In
appropriate circumstances the Secretary or Attorney General may seek or
support an appropriate protective order on behalf of the party who
submitted the documents or information.
15 CFR 325.17 Waiver.
The Secretary may waive any of the provisions of this part in writing
for good cause shown, if the Attorney General concurs and if permitted
by law.
15 CFR 325.17 15 CFR Ch IV (1-1-92 Edition)
15 CFR 325.17 Foreign-Trade Zones Board, Commerce
15 CFR 325.17 CHAPTER IV -- FOREIGN-TRADE ZONES BOARD, DEPARTMENT OF
COMMERCE
Part
Page
400 Regulations of the Foreign-Trade Zones Board
15 CFR 325.17
15 CFR 325.17 15 CFR Ch. IV (1-1-92 Edition)
15 CFR 325.17 Foreign-Trade Zones Board, Commerce
15 CFR 325.17 PART 400 -- REGULATIONS OF THE FOREIGN-TRADE ZONES BOARD
15 CFR 325.17 Subpart A -- Scope and Definitions
Sec.
400.1 Scope.
400.2 Definitions.
15 CFR 325.17 Subpart B -- Foreign-Trade Zones Board
400.11 Authority of the Board.
400.12 Responsibilities and authority of the Executive Secretary.
400.13 Board headquarters.
15 CFR 325.17 Subpart C -- Establishment and Modification of Zone
Projects
400.21 Number and location of zones and subzones.
400.22 Eligible applicants.
400.23 Criteria for grants of authority for zones and subzones.
400.24 Application for zone.
400.25 Application for subzone.
400.26 Application for expansion or other modification to zone
project.
400.27 Procedure for processing application.
400.28 Conditions, prohibitions and restrictions applicable to grants
of authority.
400.29 Application fees.
15 CFR 325.17 Subpart D -- Manufacturing and Processing Activity --
Reviews
400.31 Manufacturing and processing activity; criteria.
400.32 Procedure for review of request for approval of manufacturing
or processing.
400.33 Restrictions on manufacturing and processing activity.
15 CFR 325.17 Subpart E -- Zone Operations and Administrative
Requirements
400.41 Zone operations; general.
400.42 Requirements for commencement of operations in a zone project.
400.43 Restriction and prohibition of certain zone operations.
400.44 Zone-restricted merchandise.
400.45 Retail trade.
400.46 Accounts, records and reports.
400.47 Appeals to the Board from decisions of the Assistant Secretary
for Import Administration and the Executive Secretary.
15 CFR 325.17 Subpart F -- Notice, Hearings, Record and Information
400.51 Notice and hearings.
400.52 Official record; public access.
400.53 Information.
Authority: Foreign-Trade Zones Act of June 18, 1934, as amended
(Pub. L. 397, 73rd Congress, 48 Stat. 998-1003 (19 U.S.C. 81a-81u)).
Source: 56 FR 50798, Oct. 8, 1991, unless otherwise noted.
15 CFR 325.17 Subpart A -- Scope and Definitions
15 CFR 400.1 Scope.
(a) This part sets forth the regulations, including the rules of
practice and procedure, of the Foreign-Trade Zones Board with regard to
foreign-trade zones in the United States pursuant to the Foreign-Trade
Zones Act of 1934, as amended (19 U.S.C. 81a-81u). It includes the
substantive and procedural rules for the authorization of zones and the
regulation of zone activity. The purpose of zones as stated in the Act
is to ''expedite and encourage foreign commerce, and other purposes.''
The regulations provide the legal framework for accomplishing this
purpose in the context of evolving U.S. economic and trade policy, and
economic factors relating to international competition.
(b) Part 146 of the regulations of the United States Customs Service
(19 CFR part 146) governs zone operations, including the admission of
merchandise into zones, zone activity involving such merchandise, and
the transfer of merchandise from zones.
(c) To the extent ''activated'' under Customs procedures in 19 CFR
part 146, and only for the purposes specified in the Act (19 U.S.C.
81c), zones are treated for purposes of the tariff laws and Customs
entry procedures as being outside the Customs territory of the United
States. Under zone procedures, foreign and domestic merchandise may be
admitted into zones for operations such as storage, exhibition,
assembly, manufacture and processing, without being subject to formal
Customs entry procedures and payment of duties, unless and until the
foreign merchandise enters Customs territory for domestic consumption.
At that time, the importer ordinarily has a choice of paying duties
either at the rate applicable to the foreign material in its condition
as admitted into a zone, or if used in manufacturing or processing, to
the emerging product. Quota restrictions do not normally apply to
foreign goods in zones. The Board can deny or limit the use of zone
procedures in specific cases on public interest grounds. Merchandise
moved into zones for export (zone-restricted status) may be considered
exported for purposes such as federal excise tax rebates and Customs
drawback. Foreign merchandise (tangible personal property) admitted to
a zone and domestic merchandise held in a zone for exportation are
exempt from certain state and local ad valorem taxes (19 U.S.C.
81o(e)). Articles admitted into zones for purposes not specified in the
Act shall be subject to the tariff laws and regular entry procedures,
including the payment of applicable duties, taxes, and fees.
(56 FR 50798, Oct. 8, 1991; 56 FR 56544, Nov. 5, 1991)
15 CFR 400.2 Definitions.
(a) Act means the Foreign-Trade Zones Act of 1934, as amended (19
U.S.C. 81a-81u).
(b) Board means the Foreign-Trade Zones Board, which consists of the
Secretary of the Department of Commerce (chairman), the Secretary of the
Treasury, and the Secretary of the Army, or their designated alternates.
(c) Customs Service means the United States Customs Service of the
Department of the Treasury.
(d) District Director is the director of Customs for the Customs
district in which a zone or proposed zone is located.
(e) District Engineer is the engineer of the Department of the Army
in whose district a zone or proposed zone is located.
(f) Executive Secretary is the Executive Secretary of the
Foreign-Trade Zones Board.
(g) Foreign-trade zone is a restricted-access site, in or adjacent to
a Customs port of entry, operated pursuant to public utility principles
under the sponsorship of a corporation granted authority by the Board
and under supervision of the Customs Service.
(h) Grant of authority is a document issued by the Board which
authorizes a zone grantee to establish, operate and maintain a zone
project or a subzone, subject to limitations and conditions specified in
this part and in 19 CFR part 146. The authority to establish a zone
includes the authority to operate and the responsibility to maintain it.
(i) Manufacturing, as used in this part, means activity involving the
substantial transformation of a foreign article resulting in a new and
different article having a different name, character, and use.
(j) Port of entry means a port of entry in the United States, as
defined by part 101 of the regulations of the Customs Service (19 CFR
part 101), or a user fee airport authorized under 19 U.S.C. 58b and
listed in part 122 of the regulations of the Customs Service (19 CFR
part 122).
(k) Private corporation means any corporation, other than a public
corporation, which is organized for the purpose of establishing a zone
project and which is chartered for this purpose under a law of the state
in which the zone is located.
(l) Processing, when referring to zone activity, means any activity
involving a change in condition of merchandise, other than
manufacturing, which results in a change in the Customs classification
of an article or in its eligibility for entry for consumption.
(m) Public corporation means a state, a political subdivision
(including a municipality) or public agency thereof, or a corporate
municipal instrumentality of one or more states.
(n) Regional Commissioner is the Regional Commissioner of Customs for
the Customs region in which the zone is located.
(o) State includes any state of the United States, the District of
Columbia, and Puerto Rico.
(p) Subzone means a special-purpose zone established as an adjunct to
a zone project for a limited purpose.
(q) Zone means a foreign-trade zone established under the provisions
of the Act and these regulations. Where used in this part, the term
also includes subzones, unless the context indicates otherwise.
(r) Zone grantee is the corporate recipient of a grant of authority
for a zone project. Where used in this part, the term grantee means
zone grantee unless otherwise indicated.
(s) Zone operator is a corporation, partnership, or person that
operates a zone or subzone under the terms of an agreement with the zone
grantee or an intermediary entity, with the concurrence of the District
Director.
(t) Zone project means the zone plan, including all of the zone and
subzone sites that the Board authorizes a single grantee to establish.
(u) Zone site means the physical location of a zone or subzone.
(v) Zone user is a party using a zone under agreement with the zone
grantee or operator.
15 CFR 400.2 Subpart B -- Foreign-Trade Zones Board
15 CFR 400.11 Authority of the board.
(a) In general. In accordance with the Act and procedures of this
part, the Board has authority to:
(1) Prescribe rules and regulations concerning zones;
(2) Issue grants of authority for zones and subzones, and approve
modifications to the original zone project;
(3) Approve manufacturing and processing activity in zones and
subzones as described in subpart D of this part;
(4) Make determinations on matters requiring Board decisions under
this part;
(5) Decide appeals in regard to certain decisions of the Commerce
Department's Assistant Secretary for Import Administration or the
Executive Secretary;
(6) Inspect the premises, operations and accounts of zone grantees
and operators;
(7) Require zone grantees to report on zone operations;
(8) Report annually to the Congress on zone operations;
(9) Restrict or prohibit zone operations;
(10) Impose fines for violations of the Act and this part;
(11) Revoke grants of authority for cause; and
(12) Determine, as appropriate, whether zone activity is or would be
in the public interest or detrimental to the public interest.
(b) Authority of the Chairman of the Board. The Chairman of the
Board (Secretary of the Department of Commerce) has the authority to:
(1) Appoint the Executive Secretary of the Board;
(2) Call meetings of the Board, with reasonable notice given to each
member; and
(3) Submit to the Congress the Board's annual report as prepared by
the Executive Secretary.
(c) Alternates. Each member of the Board will designate an alternate
with authority to act in an official capacity for that member.
(d) Determinations of the Board. (1) The determinations of the Board
will be based on the majority vote of the members (or alternate members)
of the Board, provided that a quorum, composed of the Secretaries of the
Departments of Commerce and Treasury (or their alternates), is voting.
(2) All votes will be recorded.
(3) The Board will issue its determination in proceedings under the
regulations in the form of a Board order.
15 CFR 400.12 Responsibilities and authority of the Executive
Secretary.
The Executive Secretary has the following responsibilities and
authority:
(a) Represent the Board in administrative, regulatory, operational,
and public affairs matters;
(b) Serve as director of the Commerce Department's Foreign-Trade
Zones staff;
(c) Execute and implement orders of the Board;
(d) Arrange meetings and direct circulation of action documents for
the Board;
(e) Arrange with other sections of the Department of Commerce, Board
agencies and other governmental agencies for studies and comments on
zone issues and proposals;
(f) Maintain custody of the seal, records, files and correspondence
of the Board, with disposition subject to the regulations of the
Department of Commerce;
(g) Issue notices on zone matters for publication in the Federal
Register;
(h) Determine subzone sponsorship questions as provided in
400.22(d);
(i) Determine whether additional information is needed for evaluation
of applications and other requests for decisions under this part, as
provided for in various sections of this part, including 400.24,
400.25, and 400.26;
(j) Issue guidelines on information required for subzone applications
under 400.25(a)(6);
(k) Determine whether proposed modifications involve major changes
under 400.26(a)(2);
(l) Determine whether applications meet prefiling requirements under
400.27(b);
(m) Direct processing of applications, including designation of
examiners and scheduling of hearings under 400.27 and 400.32;
(n) Authorize minor modifications to zone projects under 400.27(f);
(o) Review changes in sourcing under 400.28(a)(3);
(p) Direct monitoring of zone activity under 400.31(d);
(q) Direct reviews and make recommendations on requests for
manufacturing/processing approvals under 400.32(b);
(r) Determine questions of scope under 400.32(c);
(s) Accept rate schedules and determine their sufficiency under
400.42(b)(3);
(t) Review and decide zone rate complaints cases under 400.42(b)(5);
(u) Make recommendations in cases involving questions as to whether
zone activity should be prohibited or restricted for public interest
reasons, including reviews under 400.43;
(v) Authorize under certain circumstances the return of
''zone-restricted merchandise'' for entry into Customs territory under
400.44;
(w) Authorize certain duty-paid retail trade under 400.45;
(x) Determine the format for the annual reports of zone grantees to
the Board and direct preparation of an annual report to Congress from
the Board under 400.46(d); and
(y) Designate an acting Executive Secretary.
15 CFR 400.13 Board headquarters.
The headquarters of the Board is located within the U.S. Department
of Commerce (Herbert C. Hoover Building), Pennsylvania Avenue and 14th
Street, NW., Washington, DC 20230, as part of the office of the
Foreign-Trade Zones staff.
15 CFR 400.13 Subpart C -- Establishment and Modification of Zone Projects
15 CFR 400.21 Number and location of zones and subzones.
(a) Number of zone projects -- port of entry entitlement. (1)
Provided that the other requirements of this subpart are met:
(i) Each port of entry is entitled to at least one zone project;
(ii) If a port of entry is located in more than one state, each of
the states in which the port of entry is located is entitled to a zone
project; and
(iii) If a port of entry is defined to include more than one city
separated by a navigable waterway, each of the cities is entitled to a
zone project.
(2) Zone projects in addition to those approved under the entitlement
provision of paragraph (a)(1) of this section may be authorized by the
Board if it determines that existing project(s) will not adequately
serve the public interest (convenience of commerce).
(b) Location of zones and subzones -- port of entry adjacency
requirements. (1) The Act provides that the Board may approve ''zones
in or adjacent to ports of entry'' (19 U.S.C. 81b).
(2) The ''adjacency'' requirement is satisfied if:
(i) A general-purpose zone is located within 60 statute miles or 90
minutes' driving time from the outer limits of a port of entry;
(ii) A subzone meets the following requirements relating to Customs
supervision:
(A) Proper Customs oversight can be accomplished with physical and
electronic means; and
(B) All electronically produced records are maintained in a format
compatible with the requirements of the U.S. Customs Service for the
duration of the record period; and
(C) The grantee/operator agrees to present merchandise for
examination at a Customs site selected by Customs when requested, and
further agrees to present all necessary documents directly to the
Customs oversight office.
15 CFR 400.22 Eligible applicants.
(a) In general. Subject to the other provisions of this section,
public or private corporations may apply for a grant of authority to
establish a zone project. The board will give preference to public
corporations.
(b) Public and non-profit corporations. The eligibility of public
and non-profit corporations to apply for a grant of authority shall be
supported by a enabling legislation of the legislature of the state in
which the zone is to be located, indicating that the corporation,
individually or as part of a class, is authorized to so apply.
(c) Private for-profit corporations. The eligibility of private
for-profit corporations to apply for a grant of authority shall be
supported by a special act of the state legislature naming the applicant
corporation and by evidence indicating that the corporation is chartered
for the purpose of establishing a zone.
(d) Applicants for subzones -- (1) Eligibility. The following
entities are eligible to apply for a grant of authority to establish a
subzone:
(i) The zone grantee of the closest zone project in the same state;
(ii) The zone grantee of another zone in the same state, which is a
public corporation, if the Board, or the Executive Secretary, finds that
such sponsorship better serves the public interest; or
(iii) A state agency specifically authorized to submit such an
application by an act of the state legislature.
(2) Complaints. If an application is submitted under paragraph
(d)(1) (ii) or (iii) of this section, the Executive Secretary will:
(i) Notify, in writing, the grantee specified in paragraph (d)(1)(i)
of this section, who may, within 30 days, object to such sponsorship, in
writing, with supporting information as to why the public interest would
be better served by its acting as sponsor;
(ii) Review such objections prior to filing the application to
determine whether the proposed sponsorship is in the public interest,
taking into account:
(A) The complaining zone's structure and operation;
(B) The views of State and local public agencies; and
(C) The views of the proposed subzone operator;
(iii) Notify the applicant and complainants in writing of the
Executive Secretary's determination;
(iv) If the Executive Secretary determines that the proposed
sponsorship is in the public interest, file the application (see 400.47
regarding appeals to decisions of the Executive Secretary).
15 CFR 400.23 Criteria for grants of authority for zones and subzones.
(a) Zones. The Board will consider the following factors in
determining whether to issue a grant of authority for a zone project:
(1) The need for zone services in the port of entry area, taking into
account existing as well as projected international trade related
activities and employment impact;
(2) The adequacy of the operational and financial plans and the
suitability of the proposed sites and facilities, with justification for
duplicative sites;
(3) The extent of state and local government support, as indicated by
the compatibility of the zone project with the community's master plan
or stated goals for economic development and the views of State and
local public officials involved in economic development. Such officials
shall avoid commitments that anticipate outcome of Board decisions;
(4) The views of persons and firms likely to be affected by proposed
zone activity; and
(5) If the proposal involves manufacturing or processing activity,
the criteria in 400.31.
(b) Subzones. In reviewing proposals for subzones the Board will
also consider:
(1) Whether the operation could be located in or otherwise
accommodated by the multi-purpose facilities of the zone project serving
the area;
(2) The specific zone benefits sought and the significant public
benefit(s) involved supported by evidence to meet the requirement in
400.31(c); and
(3) Whether the proposed activity is in the public interest, taking
into account the criteria in 400.31.
15 CFR 400.24 Application for zone.
(a) In general. An application for a grant of authority to establish
a zone project shall consist of a transmittal letter, an executive
summary and five exhibits.
(b) Letter of transmittal. The transmittal letter shall be currently
dated and signed by an authorized officer of the corporation and bear
the corporate seal.
(c) Executive summary. The executive summary shall describe:
(1) The corporation's legal authority to apply;
(2) The type of authority requested from the Board;
(3) The proposed zone site and facilities and the larger project of
which the zone is a part;
(4) The project background, including surveys and studies;
(5) The relationship of the project to the community's and state's
overall economic development plans and objectives;
(6) The plans for operating and financing the project; and
(7) Any additional pertinent information needed for a complete
summary description of the proposal.
(d) Exhibits. (1) Exhibit One (Legal Authority for the Application)
shall consist of:
(i) A certified copy of the state enabling legislation described in
400.22;
(ii) A copy of pertinent sections of the applicant's charter or
organization papers; and
(iii) A certified copy of the resolution of the governing body of the
corporation authorizing the official signing the application.
(2) Exhibit Two (Site Description) shall consist of:
(i) A detailed description of the zone site, including size,
location, address, and a legal description of the area proposed for
approval; a table with site designations shall be included when more
than one site is involved;
(ii) A summary description of the larger project of which the zone is
a part, including type, size, location and address;
(iii) A statement as to whether the zone is within or adjacent to a
customs port of entry;
(iv) A description of zone facilities and services, including
dimensions and types of existing and proposed structures;
(v) A description of existing or proposed site qualifications
including: land-use zoning, relationship to flood-plain,
infrastructure, utilities, security, and access to transportation
services;
(vi) A description of current activities carried on in or contiguous
to the project;
(vii) If part of a port facility, a summary of port and
transportation services and facilities; if not, a summary description
of transportation systems indicating connections from local and regional
points of arrival to the zone; and
(viii) A statement as to the possibilities and plans for zone
expansion.
(3) Exhibit Three (Operation and Financing) shall consist of:
(i) A statement as to site ownership (if not owned by the applicant
or proposed operator, evidence as to their legal right to use the site);
(ii) A discussion of the operational plan (if the zone or a portion
thereof is to be operated by other than the grantee, a summary of the
selection process used or to be used, the type of operation agreement
and, if available, the name and qualifications of the proposed
operator);
(iii) A brief explanation of the plans for providing facilities,
physical security, and for satisfying the requirements for Customs
automated systems;
(iv) A summary of the plans for financing capital and operating
costs, including a statement as to the source and use of funds; and
(v) The estimated time schedule for construction and activation.
(4) Exhibit Four (Economic Justification) shall include:
(i) A statement of the community's overall economic goals and
strategies in relation to those of the region and state;
(ii) A reference to the plan or plans on which the goals are based
and how they relate to the zone project;
(iii) An economic profile of the community including identification
and discussion of dominant sectors in terms of percentage of employment
or income, area resources and problems, economic imbalances,
unemployment rates, area foreign trade statistics, and area port
facilities and transportation networks;
(iv) A statement as to the role and objective of the zone project,
and a justification for each of the proposed sites;
(v) A discussion of the anticipated economic impact, direct and
indirect, of the zone project, including references to public costs and
benefits, employment, U.S. international trade, and environmental
impact;
(vi) A statement as to the need for zone services in the community,
with information on surveys of business, and specific expressions of
interest from proposed zone users, with letters of intent from those
firms that are considered prime prospects; and
(vii) A description of proposed manufacturing and processing
operations, if applicable, with information covering the factors
described in 400.31(b), including the nature and scope of the operation
and production process, materials and components used, items to be
foreign sourced with relevant tariff information, zone benefits
anticipated and how they will affect the firm's plans, and the economic
impact of the operation on the community and on related domestic
industries.
(5) Exhibit Five (Maps) shall consist of:
(i) The following maps and drawings:
(A) State and county maps showing the general location of the zone in
terms of the area's transportation network;
(B) A U.S. Geodetic Survey map or the equivalent showing in red the
location of the proposed zone; and
(C) A detailed blueprint of the zone or subzone area showing zone
boundaries in red, with dimensions and metes and bounds, or other legal
description, and showing existing and proposed structures.
(ii) Proposals involving existing zones shall include a drawing
showing existing zone sites and the proposed changes.
(e) Additional information. The Board or the Executive Secretary may
require additional information needed to adequately evaluate a proposal.
(f) Amendment of application. The Board or the Executive Secretary
may allow amendment of the application.
(g) Drafts. Applicants may submit a draft application to the
Executive Secretary for review.
(h) Format and number of copies. Unless the Executive Secretary
alters the requirements of this paragraph, submit an original and 12
copies of the application on 8 1/2'' x 11'' (216 x 279 mm) paper.
Exhibit Five of the original application shall contain full-sized maps,
and copies shall contain letter-sized reductions.
(i) Where to file. Address and mail the application to the Secretary
of Commerce, Attention: Executive Secretary, Foreign-Trade Zones Board,
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW.,
Washington, DC 20230.
(Approved by the Office of Management and Budget under control number
0625-0139)
15 CFR 400.25 Application for subzone.
(a) In general. An application to establish a subzone as part of a
proposed or existing zone shall be submitted in accordance with the
format in 400.24, except that the focus of the information provided in
Exhibit Four shall be on the specific activity involved and its net
economic effect. The information submitted in Exhibit Four shall
include:
(1) A summary as to the reasons for the subzone and an explanation of
its anticipated economic effects;
(2) Identity of the subzone user and its corporate affiliation;
(3) Description of the proposed activity, including:
(i) Products;
(ii) Materials and Components;
(iii) Sourcing plans (domestic/foreign);
(iv) Tariff rates and other import requirements or restrictions;
(v) Information to assist the Board in making a determination under
400.31(b)(1)(iii) and 400.31(b)(2);
(vi) Benefits to subzone user;
(vii) Information required in 400.24(d)(4)(vii);
(viii) Information as to whether alternative procedures have been
considered as a means of obtaining the benefits sought;
(ix) Information on the industry involved and extent of international
competition; and
(x) Economic impact of the operation on the area;
(4) Reason operation cannot be conducted within a general-purpose
zone;
(5) Statement as to environmental impact; and
(6) Any additional information requested by the Board or the
Executive Secretary in order to conduct the review. The Executive
Secretary may issue guidelines as to the kind of detailed information
needed for various types of subzone cases.
(b) Burden of proof. An applicant for a subzone must demonstrate to
the Board that the proposed operation meets the criteria in 400.23(b).
(Approved by the Office of Management and Budget under control number
0625-0139)
15 CFR 400.26 Application for expansion or other modification to zone
project.
(a) In general. (1) A grantee may apply to the Board for authority
to expand or otherwise modify its zone project.
(2) The Executive Secretary, in consultation with the District
Director, will determine whether the proposed modification involves a
major change in the zone plan and is thus subject to paragraph (b) of
this section, or is minor and subject to paragraph (c) of this section.
In making this determination the Executive Secretary will consider the
extent to which the proposed modification would:
(i) Substantially modify the plan originally approved by the Board;
or
(ii) Expand the physical dimensions of the approved zone area as
related to the scope of operations envisioned in the original plan.
(b) Major modification to zone project. An application for a major
modification to an approved zone project shall be submitted in
accordance with the format in 400.24, except that:
(1) Reference may be made to current information in an application
from the same applicant on file with the Board; and
(2) The content of Exhibit Four shall relate specifically to the
proposed change.
(c) Minor modification to zone project. Other applications or
requests under this subpart, including those for minor revisions of zone
boundaries, grant of authority transfers, or time extensions, shall be
submitted in letter form with information and documentation necessary
for analysis, as determined by the Executive Secretary, who shall
determine whether the proposed change is a minor one subject to this
paragraph (c) instead of paragraph (b) of this section (see,
400.27(f)).
(d) Applications for other revisions to grants of authority.
Applications or requests for revisions to grants of authority, such as
restriction modifications, shall be submitted in letter form with
information and documentation necessary for analysis, as determined by
the Executive Secretary. If the change involves removal or significant
modification of a restriction included by the Board in a grant of
authority, the review procedures of 400.32 shall apply. If not, the
procedure set forth in 400.27(f) shall apply.
(Approved by the Office of Management and Budget under control number
0625-0139)
15 CFR 400.27 Procedure for processing application.
(a) In general. This section outlines the procedure followed in
processing applications submitted under 400.24-400.26. In addition, it
sets forth the time schedules which will normally be applied in
processing applications. The schedules will provide guidance to
applicants with respect to the time frames for each of the procedural
steps involved in the Board's review. Under these schedules,
applications involving manufacturing or processing activity would be
processed within 1 year, and those not involving such activity, within
10 months. While the schedules set forth a standard time frame, the
Board may determine that it requires additional time based on special
circumstances, such as when the public comment period must be reopened
pursuant to paragraphs (d)(2)(v)(B) and (d)(3)(vi)(B) of this section.
(b) Prefiling review. Applications subject to 400.29 shall be
accompanied with a check in accordance with that section, and will be
dated upon receipt at the headquarters of the Board. The Executive
Secretary will determine whether the application satisfies the
requirements of 400.22-400.24, 400.25, 400.26, 400.32, and other
applicable provisions of this part.
(1) If the application is deficient, the Executive Secretary will
notify the applicant within 20 days of receipt of the application,
specifying the deficiencies. The applicant shall correct the
deficiencies and submit the correct application within 30 days of
notification. Otherwise, the application (original) will be returned.
(2) If the application is sufficient, the Executive Secretary will
within 45 days of receipt of the application:
(i) Formally file the application, thereby initiating the proceeding
or review;
(ii) Assign a case docket number in cases requiring a Board order;
and
(iii) Notify the applicant.
(c) Procedure -- Executive Secretary responsibilities. After
initiating a proceeding based on an application under 400.24-400.25,
or 400.26(b), the Executive Secretary will:
(1) Designate an examiner to conduct a review and prepare a report
with recommendations for the Board;
(2) Publish in the Federal Register a notice of the formal filing of
the application and initiation of the review which includes the name of
the applicant, a description of the zone project, information as to any
hearing scheduled at the outset, and an invitation for public comment,
including a time period during which the public may submit evidence,
factual information, and written arguments. Normally, the comment
period will close 60 days after the date the notice appears, except
that, if a hearing is held (see, 400.51), the period will not close
prior to 15 days after the date of the hearing. The closing date for
general comment will ordinarily be followed by an additional 15-day
period for rebuttal comments;
(3) Send copies of the filing and initiation notice and the
application to:
(i) The Commissioner of Customs and the Regional Commissioner, or a
designee; and
(ii) The Resident Member, Board of Engineers for Rivers and Harbors,
Department of the Army, and the District Engineer;
(4) Arrange for hearings, as appropriate;
(5) Transmit the reports and recommendations of the examiner and of
the officials identified in paragraph (c)(3) of this section to the
Board for appropriate action; and
(6) Notify the applicant in writing and publish notice in the Federal
Register of the Board's determination.
(d) Case reviews -- procedure and time schedule -- (1) Customs and
army engineer review. The Regional Commissioner (Customs), or a
designee, and the District Engineer (Army), in accordance with the
regulations and directives of their respective agencies, will submit
their technical reports to the Executive Secretary within 45 days of the
conclusion of the public comment period described in paragraph (c)(2) of
this section.
(2) Examiners reviews -- non-manufacturing/processing. Examiners
assigned to cases not involving manufacturing or processing activity
shall conduct a review taking into account the factors enumerated in
400.23 and other appropriate sections of this part, which shall include:
(i) Conducting or participating in necessary hearings scheduled by
the Executive Secretary;
(ii) Reviewing case records, including public comments;
(iii) Requesting information and evidence from parties of record;
(iv) Developing information and evidence necessary for evaluation and
analysis of the application in accordance with the criteria of the Act
and this part;
(v) Preparing a report with recommendations to the Board and
submitting it to the Executive Secretary within 120 days of the close of
the period for public comment (see, paragraph (c)(2) of this section).
(A) If the report is unfavorable to the applicant, it shall be
considered a preliminary report and the applicant shall be notified
within 5 days (in writing or by phone) and given 30 days from the date
of notification in which to respond to the report and submit additional
evidence.
(B) If the response contains new evidence on which there has not been
an opportunity for public comment, the Executive Secretary will publish
notice in the Federal Register after completion of the review of the
response. The new material will be made available for public inspection
and the Federal Register notice will invite further public comment for
30 days, with an additional 15-day period for rebuttal comments.
(C) The Customs and District Engineer (Army) advisers shall be
notified when necessary for their further comments, which shall be
submitted within 45 days after their notification.
(D) The examiners report in a situation under paragraph (d)(2)(v)(A)
of this section shall be completed and submitted to the Executive
Secretary within 30 days after receipt of additional evidence or notice
from the applicant that there will be none; except that, if paragraph
(d)(2)(v)(B) of this section applies, the report will be submitted
within 30 days of the close of the period for public comment.
(3) Examiners reviews -- cases involving manufacturing or processing
activity. Examiners shall conduct a review taking into account the
factors enumerated in 400.23, 400.31, and other appropriate sections
of this part, which shall include:
(i) Conducting or participating in hearings scheduled by the
Executive Secretary;
(ii) Reviewing case records, including public comments;
(iii) Requesting information and evidence from parties of record;
(iv) Developing information and evidence necessary for analysis of
the threshold factors and the economic factors enumerated in 400.31;
(v) Conducting an analysis to include:
(A) An evaluation of policy considerations pursuant to
400.31(b)(1)(i) and 400.31(b)(1)(ii);
(B) An evaluation of the economic factors enumerated in
400.31(b)(1)(iii) and 400.31(b)(2), which shall include an evaluation of
the economic impact on domestic industry, considering both producers of
like products and producers of components/materials used in the
manufacture/processing or assembly of the products. The evaluation will
take into account such factors as market conditions, price sensitivity,
degree and nature of foreign competition, effect on exports and imports,
and the net effect on U.S. employment;
(vi) Conducting appropriate industry surveys when necessary; and
(vii) Preparing a report with recommendations to the Board and
submitting it to the Executive Secretary within 150 days of the close of
the period for public comment:
(A) If the report is unfavorable to the applicant, it shall be
considered a preliminary report and the applicant shall be notified (in
writing or by phone) and given 45 days from the date of notification in
which to respond to the report and submit additional evidence pertinent
to the factors considered in the report.
(B) If the response contains new evidence on which there has not been
an opportunity for public comment, the Executive Secretary will publish
notice in the Federal Register after completion of the review of the
response. The new material will be made available for public inspection
and the Federal Register notice will invite further public comment for
30 days, with an additional 15-day period for rebuttal comments.
(e) Procedure -- Completion of review -- (1) The Executive Secretary
will circulate the examiners report with recommendations to Board
members for their review and votes (by resolution).
(2) The Treasury and Army Board members will return their votes to
the Executive Secretary within 30 days, unless a formal meeting is
requested (see, 400.11(d)).
(3) The Commerce Department will complete the decision process within
15 days of receiving the votes of both other Board members, and the
Executive Secretary will publish the Board decision.
(f) Procedure -- Application for minor modification of zone project.
(1) The Executive Secretary, with the concurrence of the District
Director, will make a determination in cases under 400.26(c) involving
minor changes to zone projects that do not require a Board order, such
as boundary modifications, including certain relocations, and will
notify the applicant in writing of the decision within 30 days of the
determination that the application or request can be processed under
400.26(c).
(2) The District Director shall provide the decision as to
concurrence within 20 days after being notified of the request or
application.
15 CFR 400.28 Conditions, prohibitions and restrictions applicable to
grants of authority.
(a) In general. Grants of authority issued by the Board for the
establishment of zones or subzones, including those already issued, are
subject to the Act and this part and the following general conditions or
limitations:
(1) Approvals from the grantee and the District Director, pursuant to
19 CFR part 146, are required prior to the activation of any portion of
an approved zone project; and
(2) Approval of the Board or the Commerce Department's Assistant
Secretary for Import Administration pursuant to subpart D of this part
is required prior to the commencement of manufacturing beyond the scope
of that approved as part of the application or pursuant to reviews under
this part (e.g., new end products, significant expansions of plant
production capacity), and of similar changes in processing activity
which involves foreign articles subject to quantitative import controls
(quotas) or results in articles subject to a lower (actual or effective)
duty rate (inverted tariff) than any of their foreign components.
(3) Sourcing changes -- (i) Notification requirement. The grantee or
operator of a zone or subzone shall notify the Executive Secretary when
there is a change in sourcing for authorized manufacturing or processing
activity which involves the use of new foreign articles subject to
quotas or inverted tariffs, unless --
(A) Entries for consumption are not to be made at the lower duty
rate; or
(B) The product in which the foreign articles are to be incorporated
is being produced for exportation.
(ii) Notification procedure. Notification shall be given prior to
the commencement of the activity, when possible, otherwise at the time
the new foreign articles arrive in the zone or are withdrawn from
inventory for use in production. Requests may be made to the Executive
Secretary for authority to submit notification of sourcing changes on a
quarterly federal fiscal year basis covering changes in the previous
quarter.
(iii) Reviews (A) Upon notification of a sourcing change under
paragraph (a)(3)(i) of this section, within 30 days, the Executive
Secretary will conduct a preliminary review of the changes in relation
to the approved activity to determine whether they could have
significant adverse effects, taking into account the factors enumerated
in 400.31(b), and will submit a report and recommendation to the
Commerce Department's Assistant Secretary for Import Administration, who
shall determine whether review is necessary. The procedures of
400.32(b) shall be used in these situations when appropriate.
(B) The Board or the Commerce Department's Assistant Secretary for
Import Administration may, based on public interest grounds, prohibit or
restrict the use of zone procedures in regard to the change in sourcing,
including requiring that items be placed in privileged foreign status
(19 CFR 146.41) upon admission to a zone or subzone.
(C) The Executive Secretary shall direct reviews necessary to ensure
that activity involved in these situations continues to be in the public
interest.
(4) Prior to activation of a zone, the zone grantee or operator shall
obtain all necessary permits from federal, state and local authorities,
and except as otherwise specified in the Act or this part, shall comply
with the requirements of those authorities.
(5) A grant of authority for a zone or a subzone shall lapse unless
the zone project (in case of subzones, the subzone facility) is
activated, pursuant to 19 CFR part 146, and in operation not later than
five years from:
(i) A Board order (authorizing the zone or subzone) issued after
November 7, 1991; or
(ii) November 7, 1991.
(6) A grant of authority approved under this subpart includes
authority for the grantee to permit the erection of buildings necessary
to carry out the approved zone project subject to concurrence of the
District Director.
(7) Zone grantees, operators, and users shall permit federal
government officials acting in an official capacity to have access to
the zone project and records during normal business hours and under
other reasonable circumstances.
(8) A grant of authority may not be sold, conveyed, transferred, set
over, or assigned (FTZ Act, section 17; 19 U.S.C. 81q). Private
ownership of zone land and facilities is permitted provided the zone
grantee retains the control necessary to implement the approved zone
project. Should title to land or facilities be transferred after a
grant of authority is issued, the zone grantee must retain, by agreement
with the new owner, a level of control which allows the grantee to carry
out its responsibilities as grantee. The sale of a zone site or
facility for more than its fair market value without zone status could,
depending on the circumstances, be subject to section 17 of the Act.
(9) A grant of authority will not be construed to make the zone
grantee automatically liable for violations by operators, users, or
other parties.
(b) Additional conditions, prohibitions and restrictions. Other
requirements, conditions or restrictions under Federal, State or local
law may apply to the zone or subzone authorized by the grant of
authority.
(c) Revocation of grants of authority.
(1) In general. As provided in this section, the Board can revoke in
whole or in part a grant of authority for a zone or subzone whenever it
determines that the zone grantee or, in the case of subzones, the
subzone operator, has violated, repeatedly and willfully, the provisions
of the Act.
(2) Procedure. When the Board has reason to believe that the
conditions for revocation, as described in paragraph (a) of this
section, are met, the Board will:
(i) Notify the zone or subzone grantee in writing stating the nature
of the alleged violations, and provide the grantee an opportunity to
request a hearing on the proposed revocation;
(ii) Conduct a hearing, if requested or otherwise if appropriate;
(iii) Make a determination on the record of the proceeding not
earlier than 4 months after providing notice to the zone grantee under
paragraph (b)(1) of this section; and
(iv) If the Board's determination is affirmative, publish notice of
revocation of the grant of authority in the Federal Register.
(3) As provided in section 18 of the Act (19 U.S.C. 81r(c)), the zone
or subzone grantee may appeal an order of the Board revoking the grant
of authority.
(56 FR 50798, Oct. 8, 1991; 56 FR 65833, Dec. 19, 1991)
Effective Date Note: At 56 FR 50798, Oct. 8, 1991, part 400 was
revised, and 400.28(a)(2) and (3) were added, effective March 9, 1992.
At 56 FR 56544, Nov. 5, 1991, the effective date of 400.28(a)(2) and
(3) was corrected to read April 6, 1992.
15 CFR 400.29 Application fees.
(a) In general. This section sets forth a uniform system of charges
in the form of fees to recover some costs incurred by the Foreign-Trade
Zones staff of the Department of Commerce in processing the applications
listed in paragraph (b) of this section. The legal authority for the
fees is 31 U.S.C. 9701, which provides for the collection of user fees
by agencies of the Federal Government.
(b) Uniform system of user fee charges. The following graduated fee
schedule establishes fees for certain types of applications and requests
for authority based on their average processing time. Applications
combining requests for more than one type of approval are subject to the
fee for each category.
(c) Applications submitted to the Board shall include a check drawn
on a national or state bank or trust company of the United States or
Puerto Rico in the amount called for in paragraph (b) of this section.
Uncertified checks must be acceptable for deposit by a Federal Reserve
bank or branch.
(d) Applicants shall make their checks payable to the U.S.
Department of Commerce ITA. The checks will be deposited by ITA into
the Treasury receipts account. If applications are found deficient
under 400.27(b)(1), or withdrawn by applicants prior to formal filing,
refunds will be made.
15 CFR 400.29 Subpart D -- Manufacturing and Processing Activity -- Reviews
15 CFR 400.31 Manufacturing and processing activity; criteria.
(a) In general. Pursuant to section 15(c) of the Act (19 U.S.C.
81o(c)), the Board has authority to restrict or prohibit zone activity
''that in its judgment is detrimental to the public interest.'' When
evaluating zone and subzone manufacturing and processing activity,
either as proposed in an application, in a request for
manufacturing/processing approval, or as part of a review of an ongoing
operation, the Board shall determine whether the activity is in the
public interest by reviewing it in relation to the evaluation criteria
contained in paragraph (b) of this section. With regard to processing
activity, this section shall apply only when the activity involves
foreign articles subject to quantitative import controls (quotas) or
results in articles subject to a lower duty rate (inverted tariff) than
any of their foreign components. Such a review involves consideration
of whether the activity is consistent with trade policy and programs,
and whether its net economic effect is positive.
(b) Evaluation criteria -- (1) Threshold factors. It is the policy
of the Board to authorize zone activity only when it is consistent with
public policy and, in regard to activity involving foreign merchandise
subject to quotas or inverted tariffs, when zone procedures are not the
sole determining cause of imports. Thus, without undertaking a review
of the economic factors enumerated in 400.31(b)(2), the Board shall
deny or restrict authority for proposed or ongoing activity if it
determines that:
(i) The activity is inconsistent with U.S. trade and tariff law, or
policy which has been formally adopted by the Executive branch;
(ii) Board approval of the activity under review would seriously
prejudice U.S. tariff and trade negotiations or other initiatives; or
(iii) The activity involves items subject to quantitative import
controls or inverted tariffs, and the use of zone procedures would be
the direct and sole cause of imports that, but for such procedures,
would not likely otherwise have occurred, taking into account imports
both as individual items and as components of imported products.
(2) Economic factors. After its review of threshold factors, if
there is a basis for further consideration, the Board shall consider the
following factors in determiing the net economic effect of the activity
or proposed activity:
(i) Overall employment impact;
(ii) Exports and reexports;
(iii) Retention or creation of manufacturing or processing activity;
(iv) Extent of value-added activity;
(v) Overall effect on import levels of relevant products, including
import displacement;
(vi) Extent and nature of foreign competition in relevant products;
(vii) Impact on related domestic industry, taking into account market
conditions; and
(viii) Other relevant information relating to public interest and net
economic impact considerations, including technology transfers and
investment effects.
(c) Methodology and evidence -- (1)(i) The first phase ( 400.31(b))
involves consideration of threshold factors. If an examiner or reviewer
makes a negative finding on any of the factors in paragraph (b)(1) of
this section in the course of a review, the applicant shall be informed
pursuant to 400.27(d)(3)(vii)(A). When threshold factors are the basis
for a negative recommendation in a review of ongoing activity, the zone
grantee and directly affected party shall be notified and given an
opportunity to submit evidence pursuant to 400.27(d)(3)(vii)(A). If the
Board determines in the negative any of the factors in paragraph (b)(1)
of this section, it shall deny or restrict authority for the proposed or
ongoing activity.
(ii) The process for paragraph (b)(2) of this section involves
consideration of the enumerated economic factors, taking into account
their relative weight and significance under the circumstances.
Previous evaluations in similar cases are considered. The net effect is
arrived at by balancing the positive and negative factors and arriving
at a net economic effect.
(2) Contributory effect. In assessing the significance of the
economic effect of the zone activity as part of the consideration of
economic factors, and in consideration of whether there is a significant
public benefit, the Board may consider the contributory effect zone
savings have as an incremental part of cost effectiveness programs
adopted by companies to improve their international competitiveness.
(3) Burden of proof. Applicants for subzones shall have the burden
of submitting evidence establishing that the activity does or would
result in a significant public benefit, taking into account the factors
in paragraph (b) of this section. Applicants for approval of
manufacturing or processing in general-purpose zones shall submit
evidence regarding the positive economic effects that would result from
activity within the zone and may submit evidence and comments as to
policy considerations. Both types of applicants are expected to submit
information in response to evidence of adverse economic effects during
the public comment period. Parties should submit evidence that is
probative and substantial in addressing the matter in issue.
(d) Monitoring and post-approval reviews -- (1) Ongoing zone activity
may be reviewed at anytime to determine whether it is in compliance with
the Act and regulations, as well as the authority granted by the Board.
Reviews may also be conducted to determine whether there are changed
circumstances that raise questions as to whether the activity is
detrimental to the public interest, taking into account the factors
enumerated in 400.31. The Board may prescribe special monitoring
requirements in its decisions when appropriate.
(2) Reviews may be initiated by the Board, the Commerce Department's
Assistant Secretary for Import Administration, or the Executive
Secretary; or, they may be undertaken in response to requests from
parties directly affected by the activity in question and showing good
cause.
(3) Upon review, if the Board finds that zone activity is no longer
in the public interest, taking into account the provisions of 400.31,
it may restrict the activity in question. The appropriateness of a
delayed effective date will be considered in such cases.
(56 FR 50798, Oct. 8, 1991; 56 FR 56544, Nov. 5, 1991)
15 CFR 400.32 Procedure for review of request for approval of
manufacturing or processing.
(a) Request as part of application for grant of authority. A request
for approval of proposed manufacturing or processing activity may be
submitted as part of an application under 400.24-400.26(a). The Board
will review the request taking into account the criteria in 400.31(b).
(b) Request for manufacturing/processing in approved zone or subzone.
Prior to the commencement of manufacturing in a zone or subzone
involving activity beyond the scope of that which has been previously
authorized at the facility (i.e., new end products, significant
expansions of plant production capacity), and of similar changes in
processing activity that involves foreign articles subject to quotas or
inverted tariffs, zone grantees or operators shall request the
determination referred to in 400.31(a) by submitting a request in
writing to the Executive Secretary ( 400.28(a)(2)). Such requests shall
include the information required by 400.24(d)(4)(vii) and 400.25.
(1) The Commerce Department's Assistant Secretary for Import
Administration may make determinations in these cases based upon a
review by the FTZ staff and the recommendation of the Executive
Secretary, when:
(i) The proposed activity is the same, in terms of products involved,
to activity recently approved by the Board and similar in circumstances;
or
(ii) The activity is for export only; or
(iii) The zone benefits sought do not involve the election of
non-privileged foreign status (19 CFR 146.42) on items involving
inverted tariffs; or
(iv) The District Director determines that the activity could
otherwise be conducted under Customs bonded procedures.
(2) When the informal procedure in paragraph (b)(1) of this section
is not appropriate --
(i) The Executive Secretary will:
(A) Assign a case docket number and give notice in the Federal
Register inviting public comment;
(B) Arrange a public hearing, if appropriate;
(C) Appoint an examiner, if appropriate, to conduct a review and
prepare a report with recommendations for the Board; and
(D) Prepare and transmit a report with recommendations, or transmit
the examiners report, to the Board for appropriate action; and
(ii) The Board will make a determination on the requests, and the
Executive Secretary will notify the grantee in writing of the Board's
determination, and will publish notice of the determination in the
Federal Register.
(c) Scope determinations. Determinations shall be made by the
Executive Secretary as to whether changes in activity are within the
scope of related activity already approved for the facility involved
under this part. When warranted, the procedures of paragraph (b)(2) of
this section will be followed.
15 CFR 400.33 Restrictions on manufacturing and processing activity.
(a) In general. In approving manufacturing or processing activity
for a zone or subzone the Board may adopt restrictions to protect the
public interest, health, or safety. The Commerce Department's Assistant
Secretary for Import Administration may similarly adopt restrictions in
exercising authority under 400.32(b)(1).
(b) Restrictions on items subject to antidumping and countervailing
duty actions -- (1) Board policy. Zone procedures shall not be used to
circumvent antidumping (AD) and countervailing duty (CVD) actions under
19 CFR parts 353 and 355.
(2) Admission of items subject to AD/CVD actions. Items subject to
AD/CVD orders or items which would be otherwise subject to suspension of
liquidation under AD/CVD procedures, if they entered U.S. Customs
territory, shall be placed in privileged foreign status (19 CFR 146.41)
upon admission to a zone or subzone. Upon entry for consumption, such
items shall be subject to duties under AD/CVD orders or to suspension of
liquidation, as appropriate, under 19 CFR parts 353 and 355.
Effective Date Note: At 56 FR 50798, Oct. 8, 1991, 400.33(b)(2)
was added, effective March 9, 1992. At 56 FR 56544, Nov. 5, 1991, the
effective date of 400.33(b)(2) was corrected to read April 6, 1992.
15 CFR 400.33 Subpart E -- Zone Operations and Administrative Requirements
15 CFR 400.41 Zone operations; general.
Zones shall be operated by or under the contractual oversight of zone
grantees, subject to the requirements of the Act and this part, as well
as those of other federal, state and local agencies having jurisdiction
over the site and operation. Zone grantees shall ensure that the
reasonable zone needs of the business community are served by their zone
projects. The District Director represents the Board with regard to the
zone projects in the district and is responsible for enforcement,
including physical security and access requirements, as provided in 19
CFR part 146.
15 CFR 400.42 Requirements for commencement of operations in a zone
project.
(a) In general. The following actions are required before operations
in a zone may commence:
(1) Approval by the District Director of an application for
activation is required as provided in 19 CFR part 146; and
(2) The Executive Secretary will review proposed manufacturing or
processing, pursuant to 400.32, and a zone schedule as provided in this
section.
(b) Zone schedule. (1) The zone grantee shall submit to the
Executive Secretary and to the District Director a zone schedule which
sets forth:
(i) Internal rules and regulations for the zone; and
(ii) A statement of the rates and charges (fees) applicable to zone
users.
(2) A zone schedule shall consist of typed, loose-leaf, numbered,
letter-sized pages, enclosed in covers, and shall contain:
(i) A title page, with information to include:
(A) The name of the zone grantee and operator(s);
(B) Schedule identification;
(C) Site description;
(D) Date of original schedule; and
(E) Name of the preparer;
(ii) A table of contents;
(iii) Administrative information;
(iv) A statement of zone operating policy, rules and regulations,
including uniform procedures regarding the construction of buildings and
facilities; and
(v) A section listing rates and charges for zones and subzones with
information sufficient for the Board or the Executive Secretary to
determine whether the rates and charges are reasonable based on other
like operations in the port of entry area, and whether there is uniform
treatment under like circumstances among zone users.
(3) The Executive Secretary will review the schedule to determine
whether it contains sufficient information for users concerning the
operation of the facility and a statement of rates and charges as
provided in paragraph (b)(2) of this section. If the Executive
Secretary determines that the schedule satisfies these requirements, the
Executive Secretary will notify the zone grantee, unless there is a
basis for review under paragraph (b)(5) of this section. A copy of the
schedule shall be available for public inspection at the offices of the
zone grantee and operator. The zone grantee shall send a copy to the
District Director, who may submit comments to the Executive Secretary.
(4) Amendments to the schedule shall be prepared and submitted in the
manner described in paragraphs (b)(1) through (b)(3) of this section,
and listed in the concluding section of the schedule, with dates.
(5) A zone user or prospective user showing good cause may object to
the zone or subzone fee on the basis that it is not reasonable, fair and
uniform, by submitting to the Executive Secretary a complaint in writing
with supporting information. The Executive Secretary will review the
complaint and issue a report and decision, which will be final unless
appealed to the Board within 30 days. The Board or the Executive
Secretary may otherwise initiate a review for cause. The factors
considered in reviewing reasonableness and fairness, will include:
(i) The going-rates and charges for like operations in the area and
the extra costs of operating a zone, including return on investment;
and
(ii) In the case of subzones, the value of actual services rendered
by the zone grantee or operator, and reasonable out-of-pocket expenses.
15 CFR 400.43 Restriction and prohibition of certain zone operations.
(a) In general. After review, the Board may restrict or prohibit any
admission of merchandise into a zone project or operation in a zone
project when it determines that such activity is detrimental to the
public interest, health or safety.
(b) Initiation of review. The Board may conduct a proceeding, or the
Executive Secretary a review, to consider a restriction or prohibition
under paragraph (a) of this section either self-initiated, or in
response to a complaint made to the Board by a party directly affected
by the activity in question and showing good cause.
15 CFR 400.44 Zone-restricted merchandise.
(a) In general. Merchandise which has been given export status by
Customs officials (''zone-restricted merchandise'' -- 19 CFR 146.44) may
be returned to the Customs Territory of the United States only when the
Board determines that the return would be in the public interest. Such
returns are subject to the Customs laws and the payment of applicable
duties and excise taxes (19 U.S.C. 81c, 4th proviso).
(b) Criteria. In making the determination described in paragraph (a)
of this section, the Board will consider:
(1) The intent of the parties;
(2) Why the goods cannot be exported;
(3) The public benefit involved in allowing their return; and
(4) The recommendation of the District Director.
(c) Procedure. (1) A request for authority to return
''zone-restricted'' merchandise into Customs territory shall be made to
the Executive Secretary in letter form by the zone grantee or operator
of the zone in which the merchandise is located, with supporting
information and documentation.
(2) The Executive Secretary will investigate the request and prepare
a report for the Board.
(3) The Executive Secretary may act for the Board under this section
in cases involving merchandise valued at 500,000 dollars or less,
provided requests are accompanied with a letter of concurrence from the
District Director.
15 CFR 400.45 Retail trade.
(a) In general. Retail is prohibited in zones, except that sales or
other commercial activity involving domestic, duty-paid, and duty-free
goods may be conducted within an activated zone project under permits
issued by the zone grantee and approved by the Board, with the further
exception that no permits shall be necessary for sales involving
domestic, duty-paid or duty-free food and non-alcoholic beverage
products sold within the zone or subzone for consumption on premises by
persons working therein. The District Director will determine whether
an activity is retail trade, subject to review by the Board when the
zone grantee requests such a review with a good cause.
(b) Procedure. Requests for Board approval under this section shall
be submitted in letter form, with supporting documentation, to the
District Director, who is authorized to act for the Board in these
cases, subject to the concurrence of the Executive Secretary.
(c) Criteria. In evaluating requests under this section, the
District Director and the Executive Secretary will consider:
(1) Whether any public benefits would result from approval; and
(2) The economic effect such activity would have on the retail trade
outside the zone in the port of entry area.
15 CFR 400.46 Accounts, records and reports.
(a) Zone accounts. Zone accounts shall be maintained in accordance
with generally accepted accounting principles, and in compliance with
the requirements of federal, state or local agencies having jurisdiction
over the site or operation.
(b) Records and forms. Zone records and forms shall be prepared and
maintained in accordance with the requirements of the Customs Service
and the Board, and the zone grantee shall retain copies of applications
it submits to the Board.
(c) Maps and drawings. Zone grantees or operators, and District
Directors, shall keep current layout drawings of approved sites as
described in 400.24(d)(5), showing activated portions, and a file
showing required approvals. The zone grantee shall furnish necessary
maps to the District Director.
(d) Annual reports (1) Zone grantees shall submit annual reports to
the Board at the time and in the format prescribed by the Executive
Secretary, for use by the Executive Secretary in the preparation of the
Board's annual report to the Congress.
(2) The Board shall submit an annual report to the Congress.
(Approved by the Office of Management and Budget under control number
(0625-0109)
15 CFR 400.47 Appeals to the Board from decisions of the Assistant
Secretary for Import Administration and the Executive Secretary.
(a) In general. Decisions of the Assistant Secretary for Import
Administration and the Executive Secretary made pursuant to
400.22(d)(2)(ii), 400.32(b)(1), 400.44(c)(3), and 400.45(b)(2) may be
appealed to the Board by adversely affected parties showing good cause.
(b) Procedures. Parties appealing a decision under paragraph (a) of
this section shall submit a request for review to the Board in writing,
stating the basis for the request, and attaching a copy of the decision
in question, as well as supporting information and documentation. After
a review, the Board will notify the complaining party of its decision in
writing.
15 CFR 400.47 Subpart F -- Notice, Hearings, Record and Information
15 CFR 400.51 Notice and hearings.
(a) In general. The Executive Secretary will publish notice in the
Federal Register inviting public comment on applications docketed for
Board action (see, 400.27(c)), and with regard to other reviews or
matters considered under this part when public comment is necessary.
Applicants shall give appropriate notice of their proposals in local
newspapers. The Board, the Secretary, the Commerce Department's
Assistant Secretary for Import Administration, or the Executive
Secretary, as appropriate, may schedule and/or hold hearings during any
proceedings or reviews conducted under this part whenever necessary or
appropriate.
(b) Requests for hearings -- (1) A directly affected party showing
good cause may request a hearing during a proceeding or review.
(2) The request must be made within 30 days of the beginning of the
period for public comment (see, 400.27) and must be accompanied by
information establishing the need for the hearing and the basis for the
requesting party's interest in the matter.
(3) A determination as to the need for the hearing will be made by
the Commerce Department's Assistant Secretary for Import Administration
within 15 days after the receipt of such a request.
(c) Procedure for public hearings. The Board will publish notice in
the Federal Register of the date, time and location of a hearing. All
participants shall have the opportunity to make a presentation.
Applicants and their witnesses shall ordinarily appear first. The
presiding officer may adopt time limits for individual presentations.
15 CFR 400.52 Official record; public access.
(a) Content. The Executive Secretary will maintain at the location
stated in 400.53(d) an official record of each proceeding within the
Board's jurisdiction. The Executive Secretary will include in the
official record all factual information, written argument, and other
material developed by, presented to, or obtained by the Board in
connection with the proceeding. The official record will contain
material that is public, business proprietary, privileged, and
classified. While there is no requirement that a verbatim record shall
be kept of public hearings, the proceedings of such hearings shall
ordinarily be recorded and transcribed when significant opposition is
involved.
(b) Opening and closing of official record. The official record
opens on the date the Executive Secretary files an application or
receives a request that satisfies the applicable requirements of this
part and closes on the date of the final determination in the proceeding
or review, as applicable.
(c) Protection of the official record. Unless otherwise ordered in a
particular case by the Executive Secretary, the official record will not
be removed from the Department of Commerce. A certified copy of the
record will be made available to any court before which any aspect of a
proceeding is under review, with appropriate safeguards to prevent
disclosure of proprietary or privileged information.
15 CFR 400.53 Information.
(a) Request for information. The Board may request submission of any
information, including business proprietary information, and written
argument necessary or appropriate to the proceeding.
(b) Public information. Except as provided in paragraph (c) of this
section, the Board will consider all information submitted in a
proceeding to be public information. If the person submitting the
information does not agree to its public disclosure, the Board will
return the information and not consider it in the proceeding.
(c) Business proprietary information. Persons submitting business
proprietary information and requesting protection from public disclosure
shall mark the cover page ''business proprietary,'' as well as the top
of each page on which such information appears.
(d) Disclosure of information. Disclosure of public information will
be governed by 15 CFR part 4. Public information in the official record
will be available for inspection and copying at the Office of the
Executive Secretary, Foreign-Trade Zones Board, U.S. Department of
Commerce Building, Pennsylvania Avenue and 14th Street, NW., Washington,
DC 20230.
15 CFR 400.53 15 CFR Ch. VII (1-1-92 Edition)
15 CFR 400.53 Bureau of Export Administration, Commerce
15 CFR 400.53 CHAPTER VII -- BUREAU OF EXPORT ADMINISTRATION,
15 CFR 400.53 DEPARTMENT OF COMMERCE
15 CFR 400.53
15 CFR 400.53 SUBCHAPTER A -- NATIONAL SECURITY INDUSTRIAL BASE
REGULATIONS
Part
Page
700 Defense priorities and allocations system
701-704 (Reserved)
705 Effect of imported articles on the national security
706-709 (Reserved)
15 CFR 400.53
15 CFR 400.53 SUBCHAPTER B -- (RESERVED)
710-729 (Reserved)
15 CFR 400.53
15 CFR 400.53 SUBCHAPTER C -- EXPORT ADMINISTRATION REGULATIONS
730-767 (Reserved)
768 U.S. Import certificate and delivery verification procedure
769 Restrictive trade practices or boycotts
770 Export licensing general policy and related information
771 General licenses
772 Individual validated licenses and amendments
773 Special licensing procedures
774 Reexports
775 Documentation requirements
776 Special commodity policies and provisions
777 Short supply controls and monitoring
778 -- Proliferation controls
779 Technical data
780-784 (Reserved)
785 Special country policies and provisions
786 Export clearance
787 Enforcement
788 Administrative proceedings
789 Appeals
790 General orders
791 Foreign availability determination procedures and criteria
792-798 (Reserved)
799 Commodity Control List and related matters
15 CFR 400.53
15 CFR 400.53 15 CFR Ch. VII (1-1-92 Edition)
15 CFR 400.53 Bureau of Export Administration, Commerce
15 CFR 400.53 SUBCHAPTER A -- NATIONAL SECURITY INDUSTRIAL BASE REGULATIONS
15 CFR 400.53 Pt. 700
15 CFR 400.53 PART 700 -- DEFENSE PRIORITIES AND ALLOCATIONS SYSTEM
15 CFR 400.53 Subpart A -- Purpose
Sec.
700.1 Purpose of this regulation.
15 CFR 400.53 Subpart B -- Overview
700.2 Introduction.
700.3 Priority ratings and rated orders.
700.4 Controlled materials.
700.5 Special priorities assistance.
700.6 Official actions.
700.7 Compliance.
15 CFR 400.53 Subpart C -- Definitions
700.8 Definitions.
15 CFR 400.53 Subpart D -- Industrial Priorities
700.10 Delegation of authority.
700.11 Priority ratings.
700.12 Elements of a rated order.
700.13 Acceptance and rejection of rated orders.
700.14 Preferential scheduling.
700.15 Extension of priority ratings.
700.16 Changes or cancellations of priority ratings and rated orders.
700.17 Use of rated orders.
700.18 Limitations on placing rated orders.
15 CFR 400.53 Subpart E -- Industrial Priorities for Energy Programs
700.20 Use of priority ratings.
700.21 Application for priority rating authority.
15 CFR 400.53 Subpart F -- The Controlled Materials
700.30 Management of the controlled materials.
700.31 Specific rules for controlled materials suppliers and users.
15 CFR 400.53 Subpart G -- Critical Items
700.40 General provisions.
700.41 Metalworking machines.
15 CFR 400.53 Subpart H -- Special Priorities Assistance
700.50 General provisions.
700.51 Requests for priority rating authority.
700.52 Examples of assistance.
700.53 Criteria for assistance.
700.54 Instances where assistance will not be provided.
700.55 Assistance programs with Canada and other nations.
15 CFR 400.53 Subpart I -- Official Actions
700.60 General provisions.
700.61 Rating Authorizations.
700.62 Directives.
700.63 Letters of Understanding.
15 CFR 400.53 Subpart J -- Compliance
700.70 General provisions.
700.71 Audits and investigations.
700.72 Compulsory process.
700.73 Notification of failure to comply.
700.74 Violations, penalties, and remedies.
700.75 Compliance conflicts.
15 CFR 400.53 Subpart K -- Adjustments, Exceptions, and Appeals
700.80 Adjustments or exceptions.
700.81 Appeals.
15 CFR 400.53 Subpart L -- Miscellaneous Provisions
700.90 Protection against claims.
700.91 Records and reports.
700.92 Applicability of this regulation and official actions.
700.93 Communications.
Schedule I to Part 700 -- Authorized Programs and Delegate Agencies
Schedule II to Part 700 -- Controlled Materials
Schedule III to Part 700 -- Technical Definitions of Controlled
Materials Products
Schedule IV to Part 700 -- Copper Controlled Materials Producers'
Set-aside Base and Percentages
Schedule V to Part 700 -- Nickel Alloys Controlled Materials
Producers' Set-aside Base and Percentages
Appendix I to Part 700 -- Delegations of Authority
Appendix II to Part 700 -- Interagency Memoranda of Understanding
Appendix III to Part 700 -- Form ITA-999; Request for Special
Priorities Assistance
Appendix IV to Part 700 -- Memorandum of Understanding on Priorities
and Allocations Support Between the U.S. Department of Commerce and the
Canadian Department of Supply and Services
Authority: Secs. 101-103, 701-707, 709, and 713, Defense Production
Act of 1950 (Pub. L. 81-774, 64 Stat. 798,) as amended (50 U.S.C. app.
2071-2073, 2151-2157, 2159, and 2163); E.O. 10480, 3 CFR 1949-53 Comp.
p. 962, as amended; E.O. 12148, 3 CFR 1979 Comp. p. 412, as amended;
Defense Mobilization Order (DMO) 3, 44 CFR part 322; DMO-12, 44 CFR
part 329; DMO-13, 44 CFR part 330, 50 U.S.C. 486, 10 U.S.C. 4501 and
9501, 50 U.S.C. 82, and Executive Order 12742 of January 8, 1991, 56 FR
1079.
Source: 49 FR 30414, July 30, 1984, unless otherwise noted.
Redesignated at 54 FR 601, Jan. 9, 1989.
15 CFR 400.53 Subpart A -- Purpose
15 CFR 700.1 Purpose of this regulation.
(a) Title I of the Defense Production Act of 1950, as amended (50
U.S.C. App. 2061, et seq.) (Defense Production Act), authorizes the
President: to require the priority performance of contracts and orders
necessary or appropriate to promote the national defense over other
contracts or orders; to allocate materials and facilities as necessary
or appropriate to promote the national defense; and to require the
allocation of, or the priority performance under contracts or orders
relating to, supplies of materials and equipment in order to assure
domestic energy supplies for national defense needs.
(b) This regulation consolidates, simplifies, and revises the Defense
Materials System and the Defense Priorities System regulations,
directions, and orders. The Defense Priorities and Allocations System
(DPAS) helps to keep current national defense programs on schedule and
provides an operating system that can be rapidly expanded in a national
emergency.
(c) To aid in understanding and using the DPAS, an overview of its
major provisions is incorporated into this regulation as subpart B --
Overview. The full text of the DPAS is found in subparts D through L.
15 CFR 700.1 Subpart B -- Overview
15 CFR 700.2 Introduction.
(a) The Federal Emergency Management Agency authorizes certain
national defense programs for priorities and allocations support. For
example, military aircraft production, ammunition, and certain programs
which maximize domestic energy supplies are ''authorized programs.'' A
complete list of currently authorized programs is provided at Schedule
I.
(b) To ensure the preferential treatment of certain contracts and
orders for authorized programs, the Department of Commerce administers
the DPAS.
(c) Commerce has delegated authority to place priority ratings on
contracts or orders necessary or appropriate to promote the national
defense to the government agencies that issue such contracts or orders.
Schedule I includes a list of agencies delegated this authority. Copies
of the Delegations of Authority are provided at Appendix I. They set
forth the authorities delegated and those retained by Commerce.
15 CFR 700.3 Priority ratings and rated orders.
(a) Rated orders are identified by a priority rating consisting of
the rating -- either DX or DO -- and a program identification symbol.
Rated orders take preference over all unrated orders as necessary to
meet required delivery dates. Among rated orders, DX rated orders take
preference over DO rated orders. Program identification symbols
indicate which authorized program is involved with the rated order. For
example, A1 identifies defense aircraft programs and A7 signifies
defense electronic programs. The program identification symbols, in
themselves, do not connote any priority.
(b) Persons receiving rated orders must give them preferential
treatment as required by this regulation. This means a person must
accept and fill a rated order for items that the person normally
supplies. The existence of previously accepted unrated or lower rated
orders is not sufficient reason for rejecting a rated order. Persons
are required to reschedule unrated orders if they conflict with
performance against a rated order. Similarly, persons must reschedule
DO rated orders if they conflict with performance against a DX rated
order.
(c) All rated orders must be scheduled to the extent possible to
ensure delivery by the required delivery date.
(d) Persons who receive rated orders must in turn place rated orders
with their suppliers for the items they need to fill the orders. This
provision ensures that suppliers will give priority treatment to rated
orders from contractor to subcontractor to suppliers throughout the
procurement chain.
(e) Persons may place a priority rating on orders only when they are
in receipt of a rated order, have been explicitly authorized to do so by
the Department of Commerce or a Delegate Agency, or are otherwise
permitted to do so by this regulation.
15 CFR 700.4 Controlled materials.
(a) Federal central management of certain key materials, designated
''controlled materials'', has been essential in the past to effective
industrial mobilizations. Accordingly, special rules are maintained in
peacetime to provide an operating mechanism that can be rapidly expanded
during a national emergency to meet increased defense and other
essential needs. Currently, the controlled materials are steel, copper,
aluminum, and nickel alloys.
(b) Under the controlled materials program, the Department of
Commerce requires suppliers of controlled materials to accept rated
orders up to a specified quantity of material during a given period of
time. This quantity is called a ''set-aside''. This provision ensures
that the material will be available when rated orders are placed. In
addition, the system ensures that controlled materials producers are
treated equitably, for after the set-aside quantity levels have been
reached, controlled materials producers may generally reject additional
rated orders. These orders would then be filled by other controlled
materials producers who had not exhausted their set-aside requirement.
(c) In time of national emergency, the level and scope of the
controlled materials program may be greatly expanded to ensure the
necessary allocation of materials and in order to direct general
industrial activity toward supporting the requirements of the emergency.
(d) Certain other items, in addition to the controlled materials,
have critical importance to national defense programs. From
time-to-time, special rules, similar to those for controlled materials,
may be needed to manage those materials.
(e) If items become scarce and critical and the requirements of the
national defense cannot be met without creating a significant
dislocation in the civilian market place so as to create appreciable
hardship, special rules may be established under section 101(b) of the
Defense Production Act to control the general distribution of such items
in the civilian market.
15 CFR 700.5 Special priorities assistance.
(a) The DPAS is designed to be largely self-executing. However, from
time-to-time production or delivery problems will arise. In this event,
special priorities assistance is available from Commerce and from the
Delegate Agencies.
(b) Special priorities assistance is available for any reason
consistent with this regulation. Generally, special priorities
assistance is provided to expedite deliveries, resolve delivery
conflicts, place rated orders, locate suppliers, or to verify
information supplied by customers and vendors. Special priorities
assistance may also be used to request rating authority for items not
automatically ratable.
15 CFR 700.6 Official actions.
When necessary, Commerce takes specific official actions to implement
or enforce the provisions of this regulation and to provide special
priorities assistance. Such actions may include the issuance of:
Rating Authorizations, Directives, Letters of Understanding, Set-asides,
and compliance documents (Administrative Subpoenas, Demands for
Information, and Inspection Authorizations).
15 CFR 700.7 Compliance.
(a) Compliance with the provisions of this regulation and official
actions is required by the Defense Production Act. Violators are
subject to criminal penalties.
(b) Any person who places or receives a rated order should be
thoroughly familiar with, and must comply with, the provisions of this
regulation.
15 CFR 700.7 Subpart C -- Definitions
15 CFR 700.8 Definitions.
The following definitions pertain to all sections of the regulation:
Authorized program. A program approved by the Federal Emergency
Management Agency for priorities and allocations support under the
Defense Production Act.
Construction. The erection, addition, extension, or alteration of any
building, structure, or project, using materials or products which are
to be an integral and permanent part of the building, structure, or
project. Construction does not include maintenance and repair.
Controlled materials. The various shapes and forms of steel, copper,
aluminum, and nickel alloys, whether new, remelted, rerolled or redrawn,
as specified in Schedule II, and as defined in Schedule III.
Controlled materials suppliers. All persons, including producers,
distributors, brokers, importers and exporters engaged in the sale or
resale of controlled materials.
Delegate Agency. A government agency authorized by delegation from
the Department of Commerce to place priority ratings on contracts or
orders needed to support authorized programs.
Defense Production Act. the Defense Production Act of 1950, as
amended (50 U.S.C. App. 2061, et seq.).
Distributors of controlled materials. Those persons (including
warehouse operators or jobbers, but not retailers) engaged in stocking
controlled materials at locations regularly maintained for their sale or
resale in the form or shape as received, or after performing such
operations as cutting to length or shape, slitting, shearing, or sorting
and grading.
Further conversion. The further processing of controlled materials
by a processor of such materials.
Item. Any raw, in process, or manufactured material, article,
commodity, supply, equipment, component, accessory, part, assembly, or
product of any kind, technical information, process, or service.
Lead time. The period of time specified in this regulation for the
receipt of orders for controlled materials by a supplier in advance of
the first day of the month in which shipment is required.
Maintenance and repair and operating supplies (MRO):
(a) Maintenance is the upkeep necessary to continue any plant,
facility, or equipment in working condition.
(b) Repair is the restoration of any plant, facility, or equipment to
working condition when it has been rendered unsafe or unfit for service
by wear and tear, damage, or failure of parts.
(c) Operating supplies are any items carried as operating supplies
according to a person's established accounting practice. Operating
supplies may include hand tools and expendable tools, jigs, dies,
fixtures used on production equipment, lubricants, cleaners, chemicals
and other expendable items.
(d) MRO does not include items produced or obtained for sale to other
persons or for installation upon or attachment to the property of
another person, or items required for the production of such items;
items needed for the replacement of any plant, facility, or equipment;
or items for the improvement of any plant, facility, or equipment by
replacing items which are still in working condition with items of a new
or different kind, quality, or design.
Minimum mill quantity. The minimum quantity of a controlled material
that may be obtained from a producer for shipment at any one time to any
one destination.
Official action. An action taken by Commerce under the authority of
the Defense Production Act and this regulation. Such actions include
the issuance of Set-asides, Rating Authorizations, Directives, Letters
of Understanding, Demands for Information, Inspection Authorizations,
and Administrative Subpoenas.
Person. Any individual, corporation, partnership, association, or any
other organized group of persons, and includes any agency of the United
States Government or any other government.
Production equipment. Any item of capital equipment used in
producing materials or furnishing services that has a unit acquisition
cost of $2,500 or more, an anticipated service life in excess of one
year, and the potential for maintaining its integrity as a capital item.
Rated order. A prime contract, a subcontract, or a purchase order in
support of an authorized program issued in accordance with the
provisions of this regulation.
Set-aside. The amount of an item for which a supplier must reserve
order book space in anticipation of the receipt of rated orders.
(49 FR 30414, July 30, 1984; 49 FR 50172, Dec. 27, 1984.
Redesignated at 54 FR 601, Jan. 9, 1989)
15 CFR 700.8 Subpart D -- Industrial Priorities
15 CFR 700.10 Delegation of authority.
(a) The priorities and allocations authorities given to the President
in Title I of the Defense Production Act have been delegated to the
Director of the Federal Emergency Management Agency (FEMA), who, in
turn, has delegated these authorities with respect to industrial
resources to the Secretary of Commerce. FEMA retains the overall policy
and coordinating functions for this delegated authority.
(b) Within the Department of Commerce, these responsibilities have
been assigned to the Office of Industrial Resource Administration. The
Department of Commerce has authorized the Delegate Agencies to assign
priority ratings to orders for items needed for authorized programs.
Copies of these Delegations of Authority are provided at Appendix I.
They set forth the authorities delegated and those retained by Commerce.
15 CFR 700.11 Priority ratings.
(a) Levels of priority. (1) There are two levels of priority
established by this regulation, identified by the rating symbols ''DO''
and ''DX''.
(2) All DO rated orders have equal priority with each other and take
preference over unrated orders. All DX rated orders have equal priority
with each other and take preference over DO rated orders and unrated
orders. (For resolution of conflicts among rated orders of equal
priority, see 700.14(c).)
(3) In addition, a Directive issued by Commerce takes preference over
any DX rated order, DO rated order, or unrated order, as stipulated in
the Directive. (For a full discussion of Directives, see 700.62.)
(b) Program identification symbols. Program identification symbols
indicate which authorized program is being supported by a rated order.
The list of authorized programs and their identification symbols are
listed in Schedule I. For example, A1 identifies defense aircraft
programs and A7 signifies defense electronic programs. Program
identification symbols, in themselves, do not connote any priority.
(c) Priority ratings. A priority rating consists of the rating
symbol -- DO and DX -- and the program identification symbol, such as
A1, B2, or H6. Thus, a contract for the production of an aircraft will
contain a DO-A1 or DX-A1 priority rating. A contract for a radar set
will contain a DO-A7 or DX-A7 priority rating.
15 CFR 700.12 Elements of a rated order.
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-A1, DX-A4, DO-H1);
(b) A required delivery date or dates. The words ''immediately'' or
''as soon as possible'' do not constitute a delivery date. A
''requirements contract'' bearing a priority rating may contain no
specific delivery date or dates and may provide for the furnishing of
items from time-to-time or within a stated period against specific
purchase orders or ''calls''. Such ''calls'' must specify a required
delivery date or dates and are to be considered as rated as of the date
of their receipt by the supplier and not as of the date of the original
''requirements contract'';
(c) The signature of an individual authorized to sign rated orders
for the person placing the order. The signature certifies that the
rated order is authorized under this regulation and that the
requirements of this regulation are being followed; and
(d) A statement that reads in substance:
This is a rated order certified for national defense use, and you are
required to follow all the provisions of the Defense Priorities and
Allocations System regulation (15 CFR part 700).
15 CFR 700.13 Acceptance and rejection of rated orders.
(a) Mandatory acceptance. (1) Except as otherwise specified in this
section, a person shall accept every rated order received and must fill
such orders regardless of any other rated or unrated orders that have
been accepted.
(2) A person shall not discriminate against rated orders in any
manner such as by charging higher prices or by imposing different terms
and conditions than for comparable unrated orders.
(b) Mandatory rejection. Unless otherwise directed by Commerce:
(1) A person shall not accept a rated order for delivery on a
specific date if unable to fill the order by that date. However, the
person must inform the customer of the earliest date on which delivery
can be made and offer to accept the order on the basis of that date.
Scheduling conflicts with previously accepted lower rated or unrated
orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO rated order for delivery on a date
which would interfere with delivery of any previously accepted DO or DX
rated orders. However, the person must offer to accept the order based
on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX rated order for delivery on a date
which would interfere with delivery of any previously accepted DX rated
orders, but must offer to accept the order based on the earliest
delivery date otherwise possible.
(c) Optional rejection. Unless otherwise directed by Commerce, rated
orders may be rejected in any of the following cases as long as a
supplier does not discriminate among customers:
(1) If the person placing the order is unwilling or unable to meet
regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not
performed;
(3) If the order is for an item produced, acquired, or provided only
for the supplier's own use for which no orders have been filled for two
years prior to the date of receipt of the rated order. If, however, a
supplier has sold some of these items, the supplier is obligated to
accept rated orders up to that quantity or portion of production,
whichever is greater, sold within the past two years;
(4) If the person placing the rated order, other than the U.S.
Government, makes the item or performs the service being ordered;
(5) If the rated order is for a controlled material in an amount
below the minimum mill quantity established in Schedule II, and the
person placing the order is not willing to buy the minimum quantity;
(6) If the rated order is for a controlled material and is not
received by the controlled materials producer within the time frame
specified in Schedule I;
(7) If the applicable set-aside has been reached or would be exceeded
by acceptance, except that a DX order must be accepted without regard
for such set-aside;
(8) If acceptance of a rated order or performance against a rated
order would violate any other regulation, official action, or order of
the Department of Commerce issued under the authority of the Defense
Production Act (See 700.75).
(d) Customer notification requirements. (1) A person must accept or
reject a rated order in writing within ten working days after receipt of
a DO rated order and within five working days after receipt of a DX
rated order. The person must give reasons in writing for the rejection.
(2) If a person has accepted a rated order and later discovers that,
due to circumstances beyond the person's control, deliveries will be
delayed, the person must notify the customer immediately, give the
reasons for the delay, and advise of a new shipment date. If
notification is given verbally, written confirmation must be provided
within five working days.
15 CFR 700.14 Preferential scheduling.
(a) A person must schedule operations, including the acquisition of
all needed production items, in a timely manner to satisfy the delivery
requirements of each rated order. Modifying production or delivery
schedules is necessary only when required delivery dates for rated
orders cannot otherwise be met.
(b) DO rated orders must be given production preference over unrated
orders, if necessary to meet required delivery dates, even if this
requires the diversion of items being processed or ready for delivery
against unrated orders. Similarly, DX rated orders must be given
preference over DO rated orders and unrated orders.
Examples: If a person receives a DO rated order with a delivery date
of June 3 and if meeting that date would mean delaying production or
delivery of an item for an unrated order, the unrated order must be
delayed. If a DX rated order is received calling for delivery on July
15 and a person has a DO rated order requiring delivery on June 2 and
operations can be scheduled to meet both deliveries, there is no need to
alter production schedules to give any additional preference to the DX
rated order.
(c) If a person cannot fill all the rated orders of equal priority
status received on the same day, the person must accept those orders
which can be filled which have the earliest delivery dates. For
example, the person must accept order A requiring delivery on December
15 before accepting order B requiring delivery on December 31. For
those orders which cannot be filled on time, the supplier must inform
the customer within the time limits set forth in 700.13(d), of the
earliest date on which delivery can be made and offer to accept the
order on the basis of that date.
(d) If a person is unable to purchase needed production items in time
to fill a rated order by its required delivery date, the person must
fill the rated order by using inventoried production items. A person
who uses inventoried items to fill a rated order may replace those items
with the use of a rated order as provided in 700.17(b).
15 CFR 700.15 Extension of priority ratings.
(a) A person must use rated orders with suppliers to obtain items
needed to fill a rated order. The person must use the priority rating
indicated on the customer's rated order, except as otherwise provided in
this regulation or as directed by the Department of Commerce.
For example, if a person is in receipt of a DO-A3 rated order for a
navigation system and needs to purchase semiconductors for its
manufacture, that person must use a DO-A3 rated order to obtain the
needed semiconductors.
(b) The priority rating must be included on each successive order
placed to obtain items needed to fill a customer's rated order. This
continues from contractor to subcontractor to supplier throughout the
entire procurement chain.
15 CFR 700.16 Changes or cancellations of priority ratings and rated
orders.
(a) The priority rating on a rated order may be changed or cancelled
by:
(1) An official action of the Department of Commerce; or
(2) Written notification from the person who placed the rated order
(including a Delegate Agency).
(b) If an unrated order is amended so as to make it a rated order, or
a DO, rating is changed to a DX rating, the supplier must give the
appropriate preferential treatment to the order as of the date the
change is received by the supplier.
(c) An amendment to a rated order that significantly alters a
supplier's original production or delivery schedule shall constitute a
new rated order as of the date of its receipt. The supplier must accept
or reject the amended order according to the provisions of 700.13.
(d) The following amendments do not constitute a new rated order: a
change in shipping destination; a reduction in the total amount of the
order; an increase in the total amount of the order which has
negligible impact upon deliveries; a minor variation in size or design;
or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items to fill a rated order, any
rated orders placed with suppliers for the items, or the priority rating
on those orders, must be cancelled.
(f) When a priority rating is added to an unrated order, or is
changed or cancelled, all suppliers must be promptly notified in
writing.
15 CFR 700.17 Use of rated orders.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to
fill rated orders, including that portion of such items normally
consumed, or converted into scrap or by-products, in the course of
processing;
(2) Containers or other packaging materials required to make delivery
of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill
rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
However, for MRO, the priority rating used must contain the program
identification symbol H7 along with the rating symbol contained on the
customer's rated order. For example, a person in receipt of a DO-A3
rated order, who needs MRO, would place a DO-H7 rated order with the
person's supplier.
(b) A person may use a rated order to replace inventoried items
(including finished items) if such items were used to fill rated orders,
as follows:
(1) The order must be placed within 90 days of the date of use of the
inventory.
(2) A DO rating symbol and the program identification symbol
indicated on the customer's rated order must be used on the order
(except as provided in 700.31(d) -- Controlled materials program
identification symbols). A DX rating symbol may not be used even if the
inventory was used to fill a DX rated order.
(3) If the priority ratings on rated orders from one customer or
several customers contain different program identification symbols, the
rated orders may be combined. In this case, the program identification
symbol H1 must be used (i.e., DO-H1) (not applicable to controlled
materials producers).
(c) A person may combine DX and DO rated orders from one customer or
several customers if the items covered by each level of priority are
identified separately and clearly. If different program identification
symbols are indicated on those rated orders of equal priority, the
person must use the program identification symbol H1 (i.e., DO-H1 or
DX-H1), except as provided in 700.31(d) (Controlled materials program
identification symbols).
(d) Combining rated and unrated orders. (1) A person may combine
rated and unrated orders provided that the rated quantities are
identified separately and are also contained in a separate rated order
which conforms to the requirements of 700.12 (Elements of a rated
order). In addition to identifying clearly the rated quantities, the
combined purchase order must contain a statement that the rated
quantities are contained in a separate rated order placed in accordance
with this regulation. Wherever possible, the separate rated order must
be physically attached to the combined purchase order. A supplier must
give preferential treatment to the rated quanitities of the combined
order, if necessary. A supplier may not use the authorities of this
regulation to give preferential treatment to the unrated portion.
(2) Any supplier who believes that rated and unrated orders are being
combined in a manner contrary to the intent of this regulation or in a
fashion that causes undue or exceptional hardship may submit a request
for adjustment or exception under 700.80.
(e) A person may place a rated order for the minimum commercially
procurable quantity even if the quantity needed to fill a rated order is
less than that minimum. However, a person must combine rated orders as
provided in paragraph (c) of this section, if possible, to obtain
minimum procurable quantities.
(f) A person is not required to place a priority rating on an order
for less than $5,000 provided that delivery can be obtained in a timely
fashion without the use of the priority rating.
15 CFR 700.18 Limitations on placing rated orders.
(a) General limitations. (1) A person may not place a DO or DX rated
order unless entitled to do so under this regulation.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item than needed, except to obtain a
minimum procurable quantity. Separate rated orders may not be placed
solely for the purpose of obtaining minimum procurable quantities on
each order;
(iii) Items in advance of the receipt of a rated order, except as
specifically authorized by Commerce (see 700.51(c) for information on
obtaining authorization for a priority rating in advance of a rated
order); or
(iv) Any of the following items unless specific priority rating
authority has been obtained from a Delegate Agency or Commerce:
(A) Items for plant improvement, expansion or construction, unless
they will be physically incorporated into a construction project covered
by a rated order; and
(B) Production or construction equipment or items to be used for the
manufacture of production equipment. (For information on requesting
priority rating authority, see 700.53.)
(b) Jurisdictional limitations. (1) The priorities and allocations
authority for certain items has been delegated under Executive Order
10480, as amended, to other agencies, and, thus, the provisions of this
regulation are not applicable to them. These items include:
(i) Petroleum, gas, solid fuel, and electric power and all other
forms of energy (Department of Energy);
(ii) Food and the domestic distribution of farm equipment and
commercial fertilizer (Department of Agriculture);
(iii) Civil transportation and the movement of persons and property
by all modes (Department of Transportation);
(iv) Minerals (Department of Interior);
(v) Water (Department of Defense -- U.S. Army Corps of Engineers);
(vi) Housing facilities (Department of Housing and Urban
Development);
(vii) Health facilities (Department of Health and Human Services);
and
(viii) Radioisotopes, stable isotopes, source material, and special
nuclear material, produced in Government-owned plants or facilities
operated by or for Department of Energy (Department of Energy).
(2) The jurisdiction of the Department of Commerce and the
Departments of Energy, Agriculture, and the Interior over certain
specific items included in the categories listed above has been
clarified by Interagency Memoranda of Understanding. Copies of these
Memoranda are provided for information at Appendix II.
(3) The following items under the jurisdiction of Commerce are
currently excluded from the rating provisions of this regulation;
however, these items are subject to Commerce Directives. These excluded
items are:
Communication services
Copper raw materials (as defined in Schedule III)
Crushed stone
Gravel
Sand
Scrap
Slag
Steam heat, central
Waste paper
15 CFR 700.18 Subpart E -- Industrial Priorities for Energy Programs
15 CFR 700.20 Use of priority ratings.
(a) Section 101(c) of the Defense Production Act authorizes the use
of priority ratings for projects which maximize domestic energy
supplies.
(b) Projects which maximize domestic energy supplies include those
which maintain or further domestic energy exploration, production,
refining, and transportation; maintain or further the conservation of
energy; or are involved in the construction or maintenance of energy
facilities.
15 CFR 700.21 Application for priority rating authority.
(a) For projects believed to maximize domestic energy supplies, a
person may request priority rating authority for scarce, critical and
essential supplies of materials and equipment by submitting DOE Form PR
437 to the Department of Energy. Blank applications and further
information may be obtained from the Technical Information Center,
Department of Energy, P.O. Box 62, Oak Ridge, Tennessee 37830, or from
the Procurement and Assistance Management Directorate, Department of
Energy, Attn: MA 932, Forrestal Building, 1000 Independence Avenue,
SW., Washington, DC 20585.
(b) On receipt of the application, the Department of Energy will:
(1) Determine if the project maximizes domestic energy supplies; and
(2) Find whether the materials or equipment involved in the
application are critical and essential to the project.
(c) If the Department of Energy notifies Commerce that the project
maximizes domestic energy supplies and that the materials or equipment
are critical and essential, Commerce must find whether the items in
question are scarce and whether there is a need to use the priorities
and allocations authorities.
(1) Scarcity implies an unusual difficulty in obtaining the material
or equipment in a time frame consistent with the timely completion of
the energy project. Among the factors to be used in making the scarcity
finding will be the following:
(i) Value and volume of material or equipment shipments;
(ii) Consumption of material and equipment;
(iii) Volume and market trends of imports and exports;
(iv) Domestic and foreign sources of supply;
(v) Normal levels of inventories;
(vi) Rates of capacity utilization;
(vii) Volume of new orders; and
(viii) Lead times for new orders.
(2) In finding whether there is a need to use the priorities and
allocations authorities, Commerce will consider alternative supply
solutions and other measures.
(d) If Commerce does not find that the items of material or equipment
are scarce, it will not proceed to analyze the need to use the
priorities and allocations authorities.
(e) Commerce will inform the Department of Energy of the results of
its analysis. If Commerce has made the two required findings, it will
authorize the Department of Energy to grant the use of a priority rating
to the applicant.
(f) Schedule I includes a list of authorized programs to support the
maximization of domestic energy supplies. A Department of Energy
regulation setting forth the procedures and criteria used by the
Department of Energy in making its determination and findings is
published in 10 CFR part 216.
15 CFR 700.21 Subpart F -- The Controlled Materials
15 CFR 700.30 Management of the controlled materials.
(a) The controlled materials are steel, copper, aluminum, and nickel
alloys in the shapes and forms listed in Schedule II and defined in
Schedule III. These materials are basic industrial resources necessary
for both authorized defense programs and for general industrial
activity. Federal management of these four materials assures the timely
availability of the materials to meet current authorized program
requirements; assures the equitable distribution of requirements among
the suppliers of the materials; and provides a flexible and expandable
system capable of directing general economic and industrial activity
during times of emergency.
(b) Before controlled materials can be used for authorized programs,
the Delegate Agencies must obtain specific approval, known as an
allotment, from the Federal Emergency Management Agency (FEMA).
Accordingly, the Delegate Agencies submit to FEMA requirements for the
controlled materials necessary to support their authorized programs.
After reviewing the available supply of the materials and other national
security, economic and policy considerations, FEMA approves the use of
specific quantities of controlled materials by issuing allotments to
each Delegate Agency. (Special controlled materials provisions
applicable to the Delegate Agencies are found in the Delegations of
Authority and the U.S.-Canadian Memorandum of Understanding appended to
this regulation.)
(c) To assure the timely availability of controlled materials, the
Department of Commerce manages their supply and distribution by
requiring producers and distributors of controlled materials to
set-aside or reserve space in their order books for the receipt of rated
orders. This process is described in greater detail in the following
section.
15 CFR 700.31 Specific rules for controlled materials suppliers and
users.
(a) Rated orders. Rated orders are used to obtain controlled
materials needed for authorized programs. Such orders must comply with
the requirements of 700.12 (Elements of a rated order). In addition, a
rated order for controlled materials placed with a producer must be in
sufficient detail to permit entry on mill schedules.
(b) Set-asides. (1) Controlled materials suppliers are issued
set-asides by type and shape of controlled material as provided in the
following paragraphs. Each supplier is required to accept all rated
orders received up to the set-aside level. The supplier may reject DO
rated orders after the set-aside quantity has been filled except that
the supplier must accept all DX rated orders regardless of the set-aside
level.
(2) A person who has had a DO rated order rejected because a
set-aside has been filled, must attempt to place the rated order with
other controlled materials suppliers whose set-asides are not filled.
If still unable to place the rated order, the person should request
special priorities assistance (see Subpart H).
(3) Steel controlled materials. (i) A set-aside is applicable to
each steel controlled materials producer who receives a written
set-aside notification from Commerce.
(ii) Any steel controlled materials producer who has not received a
set-aside notification must accept, in accordance with the provisions of
this regulation, all rated orders received, but may receive a set-aside
by applying in writing to Commerce.
(iii) The set-aside is a specified monthly quantity based on average
monthly shipments during a specific base period.
(4) Copper controlled materials. (i) Set-asides are applicable to
all copper controlled materials producers.
(ii) The monthly set-aside for each copper controlled materials
producer is calculated by multiplying the producer's set-aside base by
the appropriate set-aside percentage for each product. The set-aside
percentage and set-aside base are contained in Schedule IV.
(5) Aluminum controlled materials. (i) A set-aside is applicable to
each aluminum controlled materials producer who receives a written
set-aside notification from Commerce.
(ii) Any aluminum controlled materials producer who has not received
a set-aside notification must, in accordance with the provisions of this
regulation, accept all rated orders received, but may receive a
set-aside in writing by applying in writing to Commerce.
(iii) The set-aside for aluminum ingot and aluminum molten metal is
calculated based on the average monthly production capacity during a
specific base period.
(iv) The set-aside for all other aluminum controlled materials is
calculated based on the average monthly shipments during a specific base
period.
(6) Nickel alloys controlled materials. (i) Set-asides are
applicable to all nickel alloys controlled materials producers.
(ii) The monthly set-aside for each nickel alloys controlled
materials producer is calculated by multiplying the producer's set-aside
base by the appropriate set-aside percentage for each product. The
set-aside percentage and set-aside base are contained in Schedule V.
(c) Order books and product lead times. (1) Each controlled
materials producer must open its order books for the acceptance of DO
rated orders at least 45 days prior to the commencement of the
applicable minimum lead times provided in Schedule II for the various
shapes and forms of controlled materials.
(2) When order books are open, a controlled materials producer must
accept all rated orders received until the minimum lead time shown in
Schedule II is reached or until the set-aside level is reached.
(3) Once the minimum lead time is reached, a controlled materials
producer may devote remaining capacity to unrated orders, even if the
set-aside has not been filled. However, the producer must accept all DX
rated orders without regard to lead time. If unable to make delivery by
the required date, the producer must offer to accept the order in
accordance with 700.13.
(d) Controlled materials program identification symbols. (1) A
controlled materials producer must use the program identification symbol
H2 on all rated orders to obtain production materials or to replace
inventories used to fill rated orders except for materials for further
conversion.
(2) A controlled materials producer must use the program
identification symbol H3 on rated orders to obtain controlled materials
for further conversion needed for production or inventory replacement.
(3) A controlled materials distributor must use the program
identification symbol H4 on rated orders to obtain controlled materials
needed to fill rated orders, or to replace in inventory, controlled
materials used to fill rated orders.
(e) Controlled materials shipments and requirements data. (1)
Controlled materials producers and distributors are required to maintain
and submit to Commerce upon request, data on shipments against rated and
unrated orders and on related activities (OMB Nos. 0625-0107
(Recordkeeping), 0625-0011 (Copper), 0625-0016 (Aluminum), 0625-0017
(Steel), and 0625-0021 (Nickel Alloys)).
(2) Persons performing against rated orders must provide, upon
request of the appropriate Delegate Agency or the prime contractor, data
on requirements for controlled materials needed to fill rated contracts
for items manufactured to authorized program specifications or used in
construction for authorized programs (OMB Nos. 0625-0107 (Recordkeeping)
and 0625-0013 (Controlled Materials Requirements -- Production,
Construction, or Research and Development)). Prime contractors may
request this information from their subcontractors only when needed to
satisfy a request for requirements data from a Delegate Agency.
15 CFR 700.31 Subpart G -- Critical Items
15 CFR 700.40 General provisions.
(a) From time-to-time Commerce may determine that certain items have
a critical importance to industrial production with respect to the
national defense and authorized programs. Special rules for such items
are set forth in this subpart.
(b) Commerce may establish special rules as needed to ensure that
critical items are available to authorized programs in a timely fashion
and to provide for an equitable and orderly distribution of requirements
for such items among all suppliers of the items.
15 CFR 700.41 Metalworking machines.
(a) ''Metalworking machines'' include power driven, manual or
automatic, metal cutting and metal forming machines and complete
machines not supported in the hands of an operator when in use. Basic
machines with a list price of $2,500 or less are not covered by this
section.
(b) Metalworking machines covered by this section include:
Bending and forming machines
Boring machines
Broaching machines
Drilling and tapping machines
Electrical discharge, ultrasonic and chemical erosion machines
Forging machinery and hammers
Gear cutting and finishing machines
Grinding machines
Hydraulic and pneumatic presses, power driven
Machining centers and way-type machines
Manual presses
Mechanical presses, power driven
Milling machines
Miscellaneous machine tools
Miscellaneous secondary metal forming and cutting machines
Planers and shapers
Polishing, lapping, boring, and finishing machines
Punching and shearing machines
Riveting machines
Saws and filing machines
Turning machines, lathes, including automatic
Wire and metal ribbon forming machines
(c) A metalworking machine producer is not required to accept DO
rated orders calling for delivery in any month of a total quantity of
any size of machine in excess of 60 percent of scheduled production of
that size of machine for that month, or any DO rated orders received
less than three months prior to the beginning of the month for which
delivery is requested. However, DX rated orders must be accepted
without regard to a set-aside or the lead time, if delivery can be made
by the required date.
15 CFR 700.41 Subpart H -- Special Priorities Assistance
15 CFR 700.50 General provisions.
(a) The DPAS is designed to be largely self-executing. However, it
is anticipated that from time-to-time problems will occur. In this
event, a person should immediately contact the appropriate contract
administration officer for guidance or assistance. If additional formal
aid is needed, special priorities assistance should be sought from the
Delegate Agency through the contract administration officer. If the
Delegate Agency is unable to resolve the problem or to authorize the use
of a priority rating and believes additional assistance is warranted,
the Delegate Agency may forward the request to the Department of
Commerce for action. Special priorities assistance is a service
provided to alleviate problems that do arise.
(b) Special priorities assistance can be provided for any reason in
support of this regulation, such as assisting in obtaining timely
deliveries of items needed to satisfy rated orders or authorizing the
use of priority ratings on orders to obtain items not automatically
ratable under this regulation.
(c) A request for special priorities assistance or priority rating
authority must be submitted on Form ITA-999 (OMB control number
0625-0015) to the local contract administration representative. Form
ITA-999 may be obtained from the Delegate Agency representative, any
Commerce District Office, or from the Department of Commerce. A sample
Form ITA-999 is attached at Appendix III.
(49 FR 30414, July 30, 1984; 49 FR 50171, Dec. 27, 1984.
Redesignated at 54 FR 601, Jan. 9, 1989)
15 CFR 700.51 Requests for priority rating authority.
(a) If a rated order is likely to be delayed because a person is
unable to obtain items not normally rated under this regulation, the
person may request the authority to use a priority rating in ordering
the needed items. Examples of items for which priority ratings can be
authorized include:
(1) Production or construction equipment;
(2) Computers when not used as production items; and
(3) Expansion, rebuilding or replacing plant facilities.
(b) Rating authority for production or construction equipment. (1) A
request for priority rating authority for production or construction
equipment must be submitted to the appropriate Delegate Agency. The
Delegate Agency may establish particular forms to be used for these
requests (e.g., Department of Defense Form DD 691.)
(2) When the use of a priority rating is authorized for the
procurement of production or construction equipment, a rated order may
be used either to purchase or to lease such equipment. However, in the
latter case, the equipment may be leased only from a person engaged in
the business of leasing such equipment or from a person willing to lease
rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In
certain cases and upon specific request, Commerce, in order to promote
the national defense, may authorize a person to place a priority rating
on an order to a supplier in advance of the issuance of a rated prime
contract. In these instances, the person requesting advance rating
authority must obtain sponsorship of the request from the appropriate
Delegate Agency. The person shall also assume any business risk
associated with the placing of rated orders if these orders have to be
cancelled in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in
advance of our receiving a rated prime contract from a Delegate Agency
and our use of that priority rating with our suppliers in no way commits
the Delegate Agency, the Department of Commerce or any other government
agency to enter into a contract or order or to expend funds. Further,
we understand that the Federal Government shall not be liable for any
cancellation charges, termination costs, or other damages that may
accrue if a rated prime contract is not eventually placed and, as a
result, we must subsequently cancel orders placed with the use of the
priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated
prime contract, Commerce will consider, among other things, the
following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on
other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The political sensitivity of the project; and
(vi) The time period for which the rating is being requested.
(4) Commerce may require periodic reports on the use of the rating
authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall
promptly notify all suppliers who have received rated orders pursuant to
the advanced rating authority that the priority rating on those orders
is cancelled.
15 CFR 700.52 Examples of assistance.
(a) While special priorities assistance may be provided for any
reason in support of this regulation, it is usually provided in
situations where:
(1) A person is experiencing difficulty in obtaining delivery against
a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item needed to fill a
rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by
suppliers;
(2) Resolving production or delivery conflicts between various rated
orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
15 CFR 700.53 Criteria for assistance.
Requests for special priorities assistance should be timely, i.e.,
the request has been submitted promptly and enough time exists for the
Delegate Agency or Commerce to effect a meaningful resolution to the
problem, and must establish that:
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the
problem.
15 CFR 700.54 Instances where assistance will not be provided.
Special priorities assistance is provided at the discretion of the
Delegate Agencies and Commerce when it is determined that such
assistance is warranted to meet the objectives of this regulation.
Examples where assistance will not be provided include situations when a
person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to
provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or
conditions of doing business.
15 CFR 700.55 Assistance programs with Canada and other nations.
(a) To promote military assistance to foreign nations, this section
provides for authorizing priority ratings to persons in Canada and in
other foreign nations to obtain items in the United States in support of
authorized programs. Although priority ratings have no legal authority
outside of the United States, this section also provides information on
how persons in the United States may obtain informal assistance in
Canada.
(b) Canada. (1) The joint U.S.-Canadian military arrangements for
the defense of North America and the integrated nature of their defense
industries as set forth in the U.S.-Canadian Statement of Principles for
Economic Cooperation (October 26, 1950) require close coordination and
the establishment of a means to provide mutual assistance to the defense
industries located in both countries.
(2) The Department of Commerce coordinates with the Canadian
Department of Supply and Services on all matters of mutual concern
relating to the administration of this regulation. A copy of the
Memorandum of Understanding between the two departments is provided at
appendix IV.
(3) Any person in the United States ordering defense items in Canada
should inform the Canadian supplier that the items being ordered are to
be used to fill a rated order. The Canadian supplier should be informed
that if production materials are needed from the United States by the
supplier or the supplier's vendor to fill the order, they should contact
the Canadian Department of Supply and Services for authority to place
rated orders in the United States.
(4) Any person in Canada producing defense items for the Canadian
government may also obtain priority rating authority for items to be
purchased in the United States by applying to the Canadian Department of
Supply and Services in accordance with procedures specified by that
Department.
(5) Persons in Canada needing special priorities assistance in
obtaining defense items in the United States may apply for such
assistance to the Canadian Department of Supply and Services. The
Department of Supply and Services will forward appropriate requests to
Commerce.
(6) Any person in the United States requiring assistance in obtaining
items in Canada must submit a request through the Delegate Agency to
Commerce on Form ITA-999. Commerce will forward appropriate requests to
the Canadian Department of Supply and Services.
(c) Foreign nations. (1) Any person in a foreign nation other than
Canada requiring assistance in obtaining defense items in the United
States or priority rating authority for defense items to be purchased in
the United States, should apply for such assistance or rating authority
to the U.S. Department of Defense. The request must be sponsored by the
government of the foreign nation prior to its submission.
(2) If the Department of Defense endorses the request, it will be
forwarded to Commerce for appropriate action.
15 CFR 700.55 Subpart I -- Official Actions
15 CFR 700.60 General provisions.
(a) Commerce may, from time-to-time, take specific official actions
to implement or enforce the provisions of this regulation.
(b) Several of these official actions (Rating Authorizations,
Directives, and Letters of Understanding) are discussed in this subpart.
Other official actions which pertain to compliance (Administrative
Subpoenas, Demands for Information, and Inspection Authorizations) are
discussed in 700.71(b).
15 CFR 700.61 Rating Authorizations.
(a) A Rating Authorization is an official action granting specific
priority rating authority that:
(1) Permits a person to place a priority rating on an order for an
item not normally ratable under this regulation; or
(2) Authorizes a person to modify a priority rating on a specific
order or series of contracts or orders.
(b) To request priority rating authority, see 700.51.
15 CFR 700.62 Directives.
(a) A Directive is an official action which requires a person to take
or refrain from taking certain actions in accordance with its
provisions.
(b) A person must comply with each Directive issued. However, a
person may not use or extend a Directive to obtain any items from a
supplier, unless expressly authorized to do so in the Directive.
(c) Directives take precedence over all DX rated orders, DO rated
orders, and unrated orders previously or subsequently received, unless a
contrary instruction appears in the Directive.
15 CFR 700.63 Letters of Understanding.
(a) A Letter of Understanding is an official action which may be
issued in resolving special priorities assistance cases to reflect an
agreement reached by all parties (Commerce, the Delegate Agency, the
supplier, and the customer).
(b) A Letter of Understanding is not used to alter scheduling between
rated orders, to authorize the use of priority ratings, to impose
restrictions under this regulation, or to take other official actions.
Rather, Letters of Understanding are used to confirm production or
shipping schedules which do not require modifications to other rated
orders.
15 CFR 700.63 Subpart J -- Compliance
15 CFR 700.70 General provisions.
(a) Compliance actions may be taken for any reason necessary or
appropriate to the enforcement or the administration of the Defense
Production Act, this regulation, or an official action. Such actions
include audits, investigations, or other inquiries.
(b) Any person who places or receives a rated order should be
thoroughly familiar with, and must comply with, the provisions of this
regulation.
(c) Willful violation of any of the provisions of Title I or section
705 of the Defense Production Act, this regulation, or an official
action of the Department of Commerce, is a criminal act, punishable as
provided in the Defense Production Act and as set forth in 700.74 of
this regulation.
15 CFR 700.71 Audits and investigations.
(a) Audits and investigations are official examinations of books,
records, documents, other writings and information to ensure that the
provisions of the Defense Production Act, this regulation, and official
actions have been properly followed. An audit or investigation may also
include interviews and a systems evaluation to detect problems or
failures in the implementation of this regulation.
(b) When undertaking an audit, investigation, or other inquiry, the
Department of Commerce shall:
(1) Define the scope and purpose in the official action given to the
person under investigation, and
(2) Have ascertained that the information sought or other adequate
and authoritative data are not available from any Federal or other
responsible agency.
(c) In administering this regulation, Commerce may issue the
following documents which constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a
person to appear as a witness before an official designated by the
Department of Commerce to testify under oath on matters of which that
person has knowledge relating to the enforcement or the administration
of the Defense Production Act, this regulation, or official actions. An
Administrative Subpoena may also require the production of books,
papers, records, documents and physical objects or property.
(2) Demand for Information. A Demand for Information requires a
person to furnish to a duly authorized representative of the Department
of Commerce any information necessary or appropriate to the enforcement
or the administration of the Defense Production Act, this regulation, or
official actions.
(3) Inspection Authorizations. An Inspection Authorization requires
a person to permit a duly authorized representative of Commerce to
interview the person's employees or agents, to inspect books, records,
documents, other writings and information in the person's possession or
control at the place where that person usually keeps them, and to
inspect a person's property when such interviews and inspections are
necessary or appropriate to the enforcement or the administration of the
Defense Production Act, this regulation, or official actions.
(d) The production of books, records, documents, other writings and
information will not be required at any place other than where they are
usually kept if, prior to the return date specified in the
Administrative Subpoena or Demand for Information, a duly authorized
official of Commerce is furnished with copies of such material that are
certified under oath to be true copies. As an alternative, a person may
enter into a stipulation with a duly authorized official of Commerce as
to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection
Authorization, shall include the name, title or official position of the
person to be served, the evidence sought to be adduced, and its general
relevance to the scope and purpose of the audit, investigation, or other
inquiry. If employees or agents are to be interviewed; if books,
records, documents, other writings, or information are to be produced;
or if property is to be inspected; the Administrative Subpoena, Demand
for Information, or Inspection Authorization will describe them with
particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization
shall be made personally, or by Certified Mail -- Return Receipt
Requested at the person's last known address. Service of an
Administrative Subpoena shall be made personally. Personal service may
also be made by leaving a copy of the document with someone of suitable
age and discretion at the person's last known dwelling or place of
business.
(2) Service upon other than an individual may be made by serving a
partner, corporate officer, or a managing or general agent authorized by
appointment or by law to accept service of process. If an agent is
served, a copy of the document shall be mailed to the person named in
the document.
(3) Any individual 18 years of age or over may serve an
Administrative Subpoena, Demand for Information, or Inspection
Authorization. When personal service is made, the individual making the
service shall prepare an affidavit as to the manner in which service was
made and the identity of the person served, and return the affidavit,
and in the case of subpoenas, the original document, to the issuing
officer. In case of failure to make service, the reasons for the
failure shall be stated on the original document.
15 CFR 700.72 Compulsory process.
(a) If a person refuses to permit a duly authorized representative of
Commerce to have access to any premises or source of information
necessary to the administration or the enforcement of the Defense
Production Act, this regulation, or official actions, the Commerce
representative may seek compulsory process. Compulsory process means
the institution of appropriate legal action, including ex parte
application for an inspection warrant or its equivalent, in any forum of
appropriate jurisdiction.
(b) Compulsory process may be sought in advance of an audit,
investigation, or other inquiry, if, in the judgment of the Director of
the Office of Industrial Resource Administration, U.S. Department of
Commerce, in consultation with the Assistant General Counsel for
International Trade, U.S. Department of Commerce, there is reason to
believe that a person will refuse to permit an audit, investigation, or
other inquiry, or that other circumstances exist which make such process
desirable or necessary.
15 CFR 700.73 Notification of failure to comply.
(a) At the conclusion of an audit, investigation, or other inquiry,
or at any other time, Commerce may inform the person in writing where
compliance with the requirements of the Defense Production Act, this
regulation, or an official action were not met.
(b) In cases where Commerce determines that failure to comply with
the provisions of the Defense Production Act, this regulation, or an
official action was inadvertent, the person may be informed in writing
of the particulars involved and the corrective action to be taken.
Failure to take corrective action may then be construed as a willfull
violation of the Defense Production Act, this regulation, or an official
action.
15 CFR 700.74 Violations, penalties, and remedies.
(a) Willful violation of the provisions of Title I or sections 705 or
707 of the Defense Production Act, this regulation, or an official
action is a crime and upon conviction, a person may be punished by fine
or imprisonment, or both. Except as provided in (b) below, the maximum
penalties provided by the Defense Production Act are a $10,000 fine, or
one year in prison, or both.
(b) Willful refusal to furnish any information or reports required by
Commerce under section 705 of the Defense Production Act, this
regulation, or an official action, is a crime and upon conviction, a
person may be punished by fine or imprisonment, or both. Maximum
penalties provided by the Defense Production Act are a $1,000 fine, or
one year in prison, or both.
(c) The government may also seek an injunction from a court of
appropriate jurisdiction to prohibit the continuance of any violation
of, or to enforce compliance with, the Defense Production Act, this
regulation, or an official action.
(d) In order to secure the effective enforcement of the Defense
Production Act, this regulation, and official actions, the following are
prohibited (see section 704 of the Defense Production Act; see also,
for example, sections 2 and 371 of Title 18, United States Code):
(1) No person may solicit, influence or permit another person to
perform any act prohibited by, or to omit any act required by, the
Defense Production Act, this regulation, or an official action.
(2) No person may conspire or act in concert with any other person to
perform any act prohibited by, or to omit any act required by, the
Defense Production Act, this regulation, or an official action.
(3) No person shall deliver any item if the person knows or has
reason to believe that the item will be accepted, redelivered, held, or
used in violation of the Defense Production Act, this regulation, or an
official action. In such instances, the person must immediately notify
the Department of Commerce that, in accordance with this provision,
delivery has not been made.
15 CFR 700.75 Compliance conflicts.
If compliance with any provision of the Defense Production Act, this
regulation, or an official action would prevent a person from filling a
rated order or from complying with another provision of the Defense
Production Act, this regulation, or an official action, the person must
immediately notify the Department of Commerce for resolution of the
conflict.
15 CFR 700.75 Subpart K -- Adjustments, Exceptions, and Appeals
15 CFR 700.80 Adjustments or exceptions.
(a) A person may submit a request to the Office of Industrial
Resource Administration, U.S. Department of Commerce, for an adjustment
or exception on the ground that:
(1) A provision of this regulation or an official action results in
an undue or exceptional hardship on that person not suffered generally
by others in similar situations and circumstances; or
(2) The consequence of following a provision of this regulation or an
official action is contrary to the intent of the Defense Production Act
or this regulation.
(b) Each request for adjustment or exception must be in writing and
contain a complete statement of all the facts and circumstances related
to the provision of this regulation or official action from which
adjustment is sought and a full and precise statement of the reasons why
relief should be provided.
(c) The submission of a request for adjustment or exception shall not
relieve any person from the obligation of complying with the provision
of this regulation or official action in question while the request is
being considered unless such interim relief is granted in writing by the
Office of Industrial Resource Administration.
(d) A decision of the Office of Industrial Resource Administration
under this section may be appealed to the Assistant Secretary for Trade
Administration, U.S. Department of Commerce. (For information on the
appeal procedure, see 700.81.)
15 CFR 700.81 Appeals.
(a) Any person who has had a request for adjustment or exception
denied by the Office of Industrial Resource Administration under
700.80, may appeal to the Assistant Secretary for Trade Administration,
U.S. Department of Commerce, who shall review and reconsider the denial.
(b) An appeal must be received by the Office of the Assistant
Secretary for Trade Administration, International Trade Administration,
U.S. Department of Commerce, Washington, D. C. 20230, Ref: DPAS, no
later than 45 days after receipt of a written notice of denial from the
Office of Industrial Resource Administration. After this 45-day period,
an appeal may be accepted at the discretion of the Assistant Secretary
for Trade Administration for good cause shown.
(c) Each appeal must be in writing and contain a complete statement
of all the facts and circumstances related to the action appealed from
and a full and precise statement of the reasons the decision should be
modified or reversed.
(d) In addition to the written materials submitted in support of an
appeal, an appellant may request, in writing, an opportunity for an
informal hearing. This request may be granted or denied at the
discretion of the Assistant Secretary for Trade Administration.
(e) When a hearing is granted, the Assistant Secretary for Trade
Administration may designate an employee of the Department of Commerce
to conduct the hearing and to prepare a report. The hearing officer
shall determine all procedural questions and impose such time or other
limitations deemed reasonable. In the event that the hearing officer
decides that a printed transcript is necessary, all expenses shall be
borne by the appellant.
(f) When determining an appeal, the Assistant Secretary for Trade
Administration may consider all information submitted during the appeal
as well as any recommendations, reports, or other relevant information
and documents available to the Department of Commerce, or consult with
any other persons or groups.
(g) The submission of an appeal under this section shall not relieve
any person from the obligation of complying with the provision of this
regulation or official action in question while the appeal is being
considered unless such relief is granted in writing by the Assistant
Secretary for Trade Administration.
(h) The decision of the Assistant Secretary for Trade Administration
shall be made within a reasonable time after receipt of the appeal and
shall be the final administrative action. It shall be issued to the
appellant in writing with a statement of the reasons for the decision.
15 CFR 700.81 Subpart L -- Miscellaneous Provisions
15 CFR 700.90 Protection against claims.
A person shall not be held liable for damages or penalties for any
act or failure to act resulting directly or indirectly from compliance
with any provision of this regulation, or an official action,
notwithstanding that such provision or action shall subsequently be
declared invalid by judicial or other competent authority.
15 CFR 700.91 Records and reports.
(a) Persons are required to make and preserve for at least three
years, accurate and complete records of any transaction covered by this
regulation (OMB control number 0625-0107) or an official action.
(b) Records must be maintained in sufficient detail to permit the
determination, upon examination, of whether each transaction complies
with the provisions of this regulation or any official action. However,
this regulation does not specify any particular method or system to be
used.
(c) Records required to be maintained by this regulation must be made
available for examination on demand by duly authorized representatives
of Commerce as provided in 700.71.
(d) In addition, persons must develop, maintain, and submit any other
records and reports to Commerce that may be required for the
administration of the Defense Production Act and this regulation.
(e) Section 705(e) of the Defense Production Act provides that
information obtained under this section which the President deems
confidential, or with reference to which a request for confidential
treatment is made by the person furnishing such information, shall not
be published or disclosed unless the President determines that the
withholding of this information is contrary to the interest of the
national defense. Information required to be submitted to Commerce in
connection with the enforcement or administration of the Act, this
regulation, or an official action, is deemed to be confidential under
section 705(e) of the Act and shall not be published or disclosed except
as required by law.
15 CFR 700.92 Applicability of this regulation and official actions.
(a) This regulation and all official actions, unless specifically
stated otherwise, apply to transactions in any state, territory, or
possession of the United States and the District of Columbia.
(b) This regulation and all official actions apply not only to
deliveries to other persons but also include deliveries to affiliates
and subsidiaries of a person and deliveries from one branch, division,
or section of a single entity to another branch, division, or section
under common ownership or control.
(c) This regulation and its schedules shall not be construed to
affect any administrative actions taken by Commerce, or any outstanding
contracts or orders placed pursuant to any of the regulations, orders,
schedules or delegations of authority under the Defense Materials System
and Defense Priorities System previously issued by Commerce. Such
actions, contracts, or orders shall continue in full force and effect
under this regulation unless modified or terminated by proper authority.
(d) The repeal of the regulations, orders, schedules and delegations
of authority of the Defense Materials System (DMS) and Defense
Priorities System (DPS) shall not have the effect to release or
extinguish any penalty or liability incurred under the DMS/DPS. The
DMS/DPS shall be treated as still remaining in force for the purpose of
sustaining any action for the enforcement of such penalty or liability.
15 CFR 700.93 Communications.
All communications concerning this regulation, including requests for
copies of the regulation and explanatory information, requests for
guidance or clarification, and requests for adjustment or exception
shall be addressed to the Office of Industrial Resource Administration,
Room 3876, U.S. Department of Commerce, Washington, DC 20230, Ref:
DPAS; telephone: (202) 377-4506.
15 CFR 700.93 Pt. 700, Sched. I
15 CFR 700.93 Schedule I to Part 700 -- Authorized Programs and
Delegate Agencies
The programs listed in this schedule have been authorized by the
Federal Emergency Management Agency for priorities and allocations
support under this regulation. They have equal preferential status.
The Department of Commerce has authorized the Delegate Agencies to
use this regulation in support of those programs assigned to them, as
indicated below.
(49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989,
and amended at 56 FR 8109, Feb. 27, 1991)
15 CFR 700.93 Schedule II to Part 700 -- Controlled Materials
15 CFR 700.93 Pt. 700, Sched. II
(49 FR 30414, July 30, 1984; 49 FR 50172, Dec. 27, 1984.
Redesignated at 54 FR 601, Jan. 9, 1989)
15 CFR 700.93 Pt. 700, Sched. III
15 CFR 700.93 Schedule III to Part 700 -- Technical Definitions of
Controlled Materials Products
Alloy steel -- Steel containing 50 percent or more of iron or steel
and any one or more of the following elements in the following amounts:
manganese, maximum of range in excess of 1.65 percent; silicon, maximum
of range in excess of 0.60 percent (excepting electrical sheet and
strip); copper, maximum of range in excess of 0.60 percent; aluminum,
boron, chromium (less than 10 percent), cobalt, columbium, molybdenum,
nickel, tantalum, titanium, tungsten, vanadium, zirconium, or any other
alloying elements in any amount specified or known to have been added to
obtain a desired alloying effect. Clad steels which have an alloy steel
base or carbon steel base for which nickel and/or chromium is contained
in the coating or cladding material (e.g., nickel-copper alloy,
nickel-chrome-iron alloy or stainless) are alloy steels.
Alloy steel plate includes the following specifications:
-- 0.180 inch or thicker, over 48 inches wide -- 0.230 inch or
thicker, over 8 inches wide -- 7.53 pounds per square foot or
heavier, over 8 inches wide
Carbon steel -- Any steel (including wrought iron) customarily so
classified and also includes: (a) ingot iron; (b) all grades of
electrical sheet and strip; (c) high-strength low-alloy steels; (d)
clad and coated carbon steels not included with alloy steels: e.g.,
galvanized, tin, terne, copper (excluding copper wire mill products) or
aluminum clad and/or coated carbon steels; and (e) leaded carbon
steels.
Carbon steel plate includes the following specifications, plus floor
plates of any thickness:
-- 0.180 inch or thicker, over 48 inches wide -- 0.230 inch or
thicker, over 8 inches wide -- 7.53 pounds per square foot or
heavier, over 48 inches wide -- 9.62 pounds per square foot or
heavier, over 8 inches wide
High-strength low-alloy steels -- Only the proprietary grade promoted
and sold for this purpose, and Navy high-tensile steel grade HT
Specification Mil-S-16113 (Ships).
Stainless steel -- Heat and corrosion resisting steel containing 50
percent or more of iron or steel and 10 percent or more of chromium
whether with or without nickel, molybdenum, or other elements.
Stainless steel plate includes the following size specifications:
3/16 inch (0.1875) or thicker, over 10 inches wide.
Standard steel pipe includes the following:
Ammonia pipe
Bedstead tubing
Driven well pipe
Drive pipe
Dry kiln pipe
Dry pipe for locomotives
English gas and steam pipe
Fence pipe
Furniture pipe
Ice machine pipe
Mechanical service pipe
Nipple pipe
Pipe for piling
Pipe for plating and enameling
Pump pipe
Signal pipe
Standard pipe coupling
Structural pipe
Turbine pump pipe
Water main pipe
Water well casing
Water well reamed and drifted pipe
Structural steel shapes -- Rolled flanged sections having at least
one dimension of their cross section 3 inches or greater, commonly
referred to as angles, channels, beams, and wide flange sections.
Brass-mill products -- Copper and copper-base alloys in the following
forms: sheet, plate, and strip in flat lengths or coils; rod, bar,
shapes, and wire (except copper wire mill products); anodes, rolled,
forged, or sheared from cathodes; and seamless tube and pipe.
Straightening, threading, chamfering, cutting to width or length, or
reduction in gauge, do not constitute changes in form of brass mill
products. The following related products which have been produced by a
change in form of brass mill products are not included in the definition
of brass mill products:
Circles, discs (except brass military ammunition discs)
Cups (except brass military ammunition cups)
Blanks and segments
Forgings (except anodes)
Welding rod, 3 feet or less in length
Rotating bands
Tube and nipple -- welded, brazed, or mechanically seamed
Formed flashings
Engravers' copper
Copper-base alloy -- Any alloy of which the percentage of copper
metal equals or exceeds 40 percent by weight of the metallic content of
the alloy. It does not include alloyed gold produced in accordance with
U.S. Commercial Standard CS 67-38.
Copper foundry products -- Cast copper and copper-based alloy shapes
or forms suitable for ultimate use without remelting, rolling, drawing,
extruding, or forging. The process of casting includes the removal of
gates, risers, and sprues, and sandblasting, tumbling, and dipping, but
does not include any machining or further processing. For centrifugal
casting, the process includes the removal of the rough cut in the inner
or outer diameter, or both, before delivery to a customer. Castings
include anodes and shot cast in a foundry or by an ingot maker.
Copper powder mill products -- Copper or copper-base alloy in the
form of granular or flake powder.
Copper raw materials includes:
(a) Refined copper -- Copper metal which has been refined by any
process of electrolysis or fire-refined to a grade and in a form
suitable for fabrication;
(b) Blister copper -- High-grade crude copper in any form produced
from converter operations and from which nearly all the oxidizable
impurities have been removed by slagging and volatilization;
(c) Copper and copper-base alloy scrap -- Including fired and
demilitarized cartridge and artillery cases;
(d) Brass mill casting -- From which brass mill or intermediate
shapes may be rolled, drawn, or extruded, without remelting;
(e) Copper-base alloy ingot -- To be used in remelting, alloying, or
deoxidizing operations;
(f) Copper or copper-base alloy shot and waffle -- To be used in
remelting, alloying, deoxidizing, or chemical operations; and
(g) Copper precipitates (or cement copper) -- Precipitated from mine
water by contact with iron scrap, tin cans, or iron in other forms.
Copper wire mill products -- Uninsulated or insulated wire and cable
made from copper or copper-base alloy, used for transmission of
electrical energy, whatever the outer protective coverings may be, and
also copper-clad steel or aluminum wire containing over 20 percent
copper by weight regardless of end use. Copper wire mill products shall
be measured in terms of pounds of copper content.
Foil -- A flat rolled product, rectangular in cross section, of
thickness less than 0.006 inch.
Ingot includes:
(a) Extrusion ingot (billet) -- A solid or hollow cast form, usually
cylindrical, suitable for extruding;
(b) Other ingot and molten metal, primary -- A cast form other than
extrusion ingot (or molten metal), shipped by an integrated producer or
nonintegrated fabricator from a company-owned facility not exclusively
devoted to producing secondary ingot; and
(c) Other ingot and molten metal, secondary -- A cast form other than
extrusion ingot (or molten metal), principally produced from aluminum
scrap to specification by secondary smelters (or others at a facility
exclusively devoted to producing ingot from scrap for sale); excludes
remelt scrap ingot (RSI) which is considered scrap until remelted and
cast into specification ingot.
Pipe and tube includes:
(a) Drawn tube -- A hollow wrought product that is long in relation
to its cross section, which is round, square, rectangular, hexagonal,
octagonal, or elliptical in shape, sharp or rounded corners, with a
uniform wall thickness except as affected by corner radii, and brought
to final dimensions by cold drawing through a die (includes tube that is
sized);
(b) Extruded pipe and tube -- A hollow wrought product formed by hot
extruding with a uniform wall thickness (except as affected by corner
radii) that is long in relation to its cross section, round, square,
rectangular, hexagonal, octagonal, or elliptical in shape (excludes tube
that is sized by cold drawing); and
(c) Welded tube -- A hollow product that is long in relation to its
cross section, which is round, square, rectangular, hexagonal,
octagonal, or elliptical in shape, produced by forming and seam-welding
sheet longitudinally.
Plate includes:
(a) Plate, nonheat-treatable -- A flat rolled product, rectangular in
cross section, 0.250 inch or greater in thickness, which can be
strengthened only by cold work; and
(b) Plate, heat-treatable -- A flat rolled product, in 2000, 6000, or
7000 alloy series (except 7072), rectangular in cross section, 0.250
inch or greater in thickness, which can be strengthened by a suitable
thermal treatment.
Powder -- An aggregate of discrete particles of aluminum,
substantially all of which are finer than 1,000 microns (minus 18 mesh);
and includes:
(a) Atomized powder -- Powder produced by blowing or asperating
molten metal through an orifice;
(b) Flaked powder -- Powder consisting of flat or scale-like
particles of a thickness small compared with other dimensions, produced
by milling in the presence of a lubricant; and
(c) Paste -- A blend of powder or flake with a thinner or
plasticizer.
Rod and bar includes:
(a) Conductor redraw rod (continuous-cast or rolled) -- A solid round
product that is long in relation to cross section, 0.375 inch or greater
in diameter, produced by continuous casting followed by size-rolling or
by rolling from DC cast ingot, suitable for drawing into electrical
conductor wire;
(b) Nonconductor redraw rod (continuous-cast or rolled) -- A solid
round product that is long in relation to cross section, 0.375 inch or
greater in diameter, produced by continuous casting followed by
size-rolling, or by rolling from D.C. cast ingot, suitable for drawing
into nonconductor wire;
(c) Other rod and bar (continuous-cast or rolled) -- A solid round,
square, rectangular, hexagon, or octagon-shaped product, produced by
continuous casting or rolling that is long in relation to cross section,
0.375 inch or greater in diameter or in at least one perpendicular
distance between parallel faces, other than the redraw rod and DC cast
ingot; and
(d) Extruded rod and bar -- A solid product produced by extruding
(sometimes brought to final dimensions by drawing) that is long in
relation to cross section, which is round, square, rectangular,
hexagonal, or octagonal in shape and 0.375 inch or greater in diameter
or in at least one perpendicular distance between parallel faces.
Shapes includes:
(a) Extruded shapes -- A product produced by extruding, that is long
in relation to its cross-sectional dimensions and has a cross section
other than that of rod and bar and pipe and tube; and
(b) Rolled structural shapes -- A structural shape produced by hot
rolling.
Sheet includes:
(a) Sheet, nonheat-treatable -- A rolled product, flat or coiled,
rectangular in cross section, of 0.006 inch thickness but under 0.250
inch thickness, which can be strengthened only by cold work; and
(b) Sheet, heat-treatable -- A rolled product, in 2000, 6000, 7000
alloy series (except 7072), flat or coiled, rectangular in cross
section, of 0.006 inch thickness but under 0.250 inch thickness, which
can be strengthened by a suitable thermal treatment.
Wire and cable includes:
(a) Wire, bare, conductor and nonconductor -- A solid wrought product
that is long in relation to its cross section, which is square, round,
rectangular, hexagonal, or octagonal in shape, whose diameter or
greatest perpendicular distance between parallel faces (except for
flattened wire) is less than 0.375 inch;
(b) ACSR and aluminum cable, bare -- Aluminum stranded conductor
reinforced by a core of steel (ACSR), or aluminum (ACAR), or any other
bare stranded aluminum conductor; and
(c) Wire and cable, insulated or covered -- Aluminum electrical
conductor wire or stranded conductors that are insulated or covered.
Nickel alloys -- Those alloys for which the specified nickel content
is 10 percent or more up to and including pure nickel, and which the
iron content is nominally less than 50 percent of iron, and which does
not contain as much as 40 percent of copper, nor as much as 50 percent
of aluminum, in the shapes and forms shown in Schedule II. It also
includes cast iron for which the specified nickel content is 5 percent
or more. It does not include primary nickel in the forms of
electrolytic cathodes, pigs, rondelles, cubes, pellets, shot,
briquettes, oxide (including sintered oxide), salts, or chemicals; nor
does it include primary nickel in the forms of ingots or powder for
remelting.
15 CFR 700.93 Schedule IV to Part 700 -- Copper Controlled Materials
Producers' Set-aside Base and Percentages
Set-aside Base -- Average monthly shipments for a producer's own
account during the previous calendar year.
15 CFR 700.93 Schedule V to Part 700 -- Nickel Alloys Controlled
Materials Producers' Set-aside Base and Percentages
Set-aside Base -- Average monthly shipments, by each producer, during
the previous calendar year.
15 CFR 700.93 Pt. 700, App. I
15 CFR 700.93 Appendix I to Part 700 -- Delegations of Authority
of Defense; Defense Priorities and Allocations System
(15 CFR part 700)
1. Authority.
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061, et
seq.); Executive Order 10480, 18 FR 4939, 3 CFR 1949-1953 Comp., p.
962, as amended; and Defense Mobilization Order (DMO) 3, 44 CFR 322.
2. Purpose.
(a) This document delegates certain authority to the Secretary of
Defense necessary to the effective implementation of the Defense
Priorities and Allocations System (DPAS) regulation (15 CFR part 700).
(b) Certain specifics concerning the implementation of this delegated
authority are contained in a Statement of Conditions to this delegation
issued by the Office of Industrial Resource Administration (OIRA),
Department of Commerce (DOC).
3. Rating Authority.
(a) The Secretary of Defense is delegated the authority to place
rated contracts and orders in support of Department of Defense (DOD)
programs authorized by the Director, Federal Emergency Management
Agency.
(b) The Secretary of Defense is delegated the authority to use the DX
rating symbol in placing rated orders for those authorized programs
determined by the President to be of the Highest National Priority as
described in the DOD Master Urgency List.
4. Co-production Programs.
(a) The Secretary of Defense may request priority rating authority
from DOC for specific co-production programs, and if granted, may
authorize only those foreign firms which have entered into a formal
co-production agreement with a U.S. producer to use priority ratings.
(b) DOC may authorize the use of priority ratings by other foreign
firms providing items necessary to the co-production activity on a
case-by-case basis.
5. Production and Construction Equipment.
(a) The Secretary of Defense may authorize persons to place rated
orders for delivery of production equipment required to support
authorized programs of DOD, when the equipment is necessary for the
timely performance of rated orders and timely delivery of the equipment
cannot be obtained otherwise.
(b) The Secretary of Defense may authorize persons to place rated
orders for delivery of construction equipment, when the equipment is to
be used for authorized construction projects and when timely delivery of
the equipment cannot be obtained otherwise.
6. Delivery Scheduling.
The Secretary of Defense is delegated the authority to reschedule
deliveries of materials which are required in support of DOD programs,
provided that such authority shall be used (1) only to reschedule
deliveries among contracts or orders assigned priority ratings by DOD,
and (2) only to the extent that such rescheduling of deliveries requires
no change in production schedules of other rated orders.
7. Special Priorities Assistance.
The Secretary of Defense may sponsor requests by persons for special
priorities assistance upon determining the defense urgency of the
requested assistance. DOD will: (1) serve as the initial point of
contact for persons needing assistance, (2) verify the accuracy of the
information provided and make reasonable efforts to resolve the issues,
and, when necessary, (3) expeditiously forward the request through
established DOD channels to DOC to facilitate timely resolution. Upon
receipt of the request for special priorities assistance, DOC will take
immediate action to effect resolution and will keep DOD advised of
progress.
8. Controlled Materials.
The Secretary of Defense is delegated the authority to make
allotments of controlled materials to other agencies in support of
authorized defense programs.
9. Compliance, Audits, and Training.
In exercising this delegation, the Secretary of Defense should ensure
that both DOD personnel and defense contractors are in full compliance
with the provisions of the DPAS regulation. Accordingly:
(a) The Secretary of Defense is delegated the authority to review the
implementation of the DPAS by all persons who are in receipt of rated
orders supporting DOD programs. However, this review shall not include
inquiries into any unrated activities of these persons.
(b) The Secretary of Defense shall notify DOC of any alleged
violations of the priorities and allocations provisions of the Defense
Production Act or the DPAS regulation.
(c) The Secretary of Defense should conduct a continuing training
program to ensure that appropriate DOD and contractor personnel are
thoroughly familiar with the provisions of the DPAS and this delegation.
10. Limitations of Authority.
(a) This delegated authority shall not be used for (1) civilian items
for resale in Military Exchanges or the packaging for such items; (2)
material purchased from exclusively retail establishments; (3)
procurement of items to be used primarily for administrative purposes,
such as for personnel or financial management; or (4) direct
procurement by or for DOD of any items specifically set forth in the
Statement of Conditions to this delegation (not published).
(b) This delegation shall be implemented in accordance with the DPAS
regulation, the Statement of Conditions to this delegation (not
published), and any other regulations or official actions issued by DOC.
It does not limit the authority of the Secretary of Commerce under
Executive Order 10480 or other authority.
11. Redelegations of Authority.
The authority granted by this delegation may be redelegated within
DOD and to other agencies of the United States administering DOD
programs. Any redelegations of such authority shall be made in writing
with a copy furnished to DOC. No other redelegations of such authority
shall be made without the prior written approval of DOC.
12. Effective Date and Revocation of Previous Delegations.
This delegation of authority shall take effect August 29, 1984,
revoking all previous delegations issued by DOC to DOD relating to these
authorities.
Dated: June 21, 1984.
Walter J. Olson,
Deputy Assistant Secretary of Commerce for Export Administration.
of Energy; Defense Priorities and Allocations System
(15 CFR part 700)
1. Authority.
Defense Production Act of 1950, as amended (50 U.S.C. app. 2061, et
seq.); Executive Order 10480, 18 FR 4939, 3 CFR 1949-1953 Comp., p.
962, as amended; Executive Order 11912, 41 FR 15825, 3 CFR 1976 Comp.,
p. 114, as amended; Executive Order 12148, 44 FR 43239, 3 CFR 1979
Comp., p. 393, as amended; Defense Mobilization Order (DMO) 3, 44 CFR
322; and DMO-13, 44 CFR 330.
2. Purpose.
(a) This document delegates certain authority to the Secretary of
Energy necessary to the effective implementation of the Defense
Priorities and Allocations System (DPAS) regulation (15 CFR part 700).
(b) Certain specifics concerning the implementation of this delegated
authority are contained in a Statement of Conditions to this delegation
issued by the Office of Industrial Resource Administration (OIRA),
Department of Commerce (DOC).
3. Rating Authority.
(a) The Secretary of Energy is delegated the authority to place rated
contracts and orders in support of Department of Energy (DOE) programs
for national defense authorized by the Director, Federal Emergency
Management Agency.
(b) The Secretary of Energy, in accordance with Executive Order
11912, is delegated the authority to make the findings required by
section 101(c) of the Defense Production Act of 1950, as amended, that
specified material or equipment is critical and essential:
(1) To maintain or further domestic exploration, production,
refining, or transportation;
(2) To conserve energy supplies; or
(3) To construct or maintain energy facilities.
(c) The Secretary of Energy is delegated the authority to use the DX
rating symbol in placing rated orders for those authorized programs
determined by the President to be of the Highest National Priority as
described in the DOD Master Urgency List.
4. Production and Construction Equipment.
(a) The Secretary of Energy may authorize persons to place rated
orders for delivery of production equipment required to support
authorized atomic energy programs, when the equipment is necessary for
the timely performance of rated orders and timely delivery of the
equipment cannot be obtained otherwise.
(b) The Secretary of Energy may authorize persons to place rated
orders for delivery of construction equipment, when the equipment is to
be used for authorized atomic energy construction projects and timely
delivery of the equipment cannot be obtained otherwise.
5. Delivery Scheduling.
The Secretary of Energy is delegated the authority to reschedule
deliveries of materials which are required in support of DOE programs,
provided that such authority shall be used (1) only to reschedule
deliveries among contracts or orders assigned priority ratings by DOE,
and (2) only to the extent that such rescheduling of deliveries requires
no change in production schedules of other rated orders.
6. Special Priorities Assistance.
The Secretary of Energy may sponsor requests by persons for special
priorities assistance upon determining the defense or energy-related
urgency of the requested assistance. DOE will: (1) serve as the
initial point of contact for persons needing assistance, (2) verify the
accuracy of the information provided and make reasonable efforts to
resolve the issues, and when necessary, (3) expeditiously forward the
request through established DOE channels to DOC to facilitate timely
resolution. Upon receipt of the request for special priorities
assistance, DOC will take immediate action to effect resolution and will
keep DOE advised of progress.
7. Compliance, Audits, and Training.
In exercising this delegation, the Secretary of Energy should ensure
that both DOE personnel and defense contractors are in full compliance
with the provisions of the DPAS regulation. Accordingly:
(a) The Secretary of Energy is delegated the authority to review the
implementation of the DPAS by all persons who are in receipt of rated
orders supporting DOE programs. However, this review shall not include
inquiries into any unrated activities of these persons.
(b) The Secretary of Energy shall notify DOC of any alleged
violations of the priorities and allocations provisions of the Defense
Production Act or of the DPAS regulation.
(c) The Secretary of Energy should conduct a continuing training
program to ensure that appropriate DOE and contractor personnel are
thoroughly familiar with the provisions of the DPAS and this delegation.
8. Limitations of Authority.
(a) This delegated authority shall not be used for (1) material
purchased from exclusively retail establishments; (2) procurement of
items to be used primarily for administrative purposes, such as for
personnel or financial management; or (3) direct procurement by or for
DOE of any items specifically set forth in the Statement of Conditions
to this delegation (not published).
(b) Priority ratings to support the maximization of domestic energy
supplies provided by section 101(c) of the Defense Production Act of
1950, as amended, may only be used after the findings required by
section 101(c) have been made:
(1) The Secretary of Energy must determine that the energy program
involved maximizes domestic energy supplies; and find that the specific
material or equipment is critical and essential.
(2) The Secretary of Commerce must find that the specific material or
equipment is scarce; and that there is a reasonable need to use the
priorities and allocations authorities.
(c) This delegation shall be implemented in accordance with the DPAS
regulation, the Statement of Conditions to this delegation (not
published), and any other regulations and official actions issued by
DOC. It does not limit the authority of the Secretary of Commerce under
Executive Order 10480 or other authority.
9. Redelegations of Authority.
The authority granted by this delegation may be redelegated within
DOE and to other agencies of the United States administering DOE
programs. Any redelegations of such authority shall be made in writing
with a copy furnished to DOC. No other redelegations of such authority
shall be made without the prior written approval of DOC.
10. Effective Date and Revocation of Previous Delegations.
This delegation of authority shall take effect August 29, 1984,
revoking all previous delegations issued by DOC relating to these
authorities.
Dated: June 21, 1984.
Walter J. Olson,
Deputy Assistant Secretary of Commerce for Export Administration.
Administrator of General Services; Defense Priorities
and Allocations System (15 CFR part 700)
1. Authority.
Defense Production Act of 1950, as amended (50 U.S.C. app. 2061, et
seq.); Executive Order 10480, 18 FR 4939, 3 CFR 1949-1953 Comp., p.
962, as amended; and Defense Mobilization Order (DMO) 3, 44 CFR 322.
2. Purpose.
(a) This document delegates certain authority to the Administrator of
General Services necessary to the effective implementation of the
Defense Priorities and Allocations System (DPAS) regulation (15 CFR part
700).
(b) Certain specifics concerning the implementation of this delegated
authority are contained in a Statement of Conditions to this delegation
issued by the Office of Industrial Resource Administration (OIRA),
Department of Commerce (DOC).
3. Rating Authority.
The Administrator of General Services is delegated the authority to
place DO rated contracts and orders in support of the General Services
Administration's (GSA) Supply Distribution Program for items acquired
for authorized programs of the Departments of Defense and Energy. In
placing rated orders, GSA is to use the program identification symbol
K1.
4. Special Priorities Assistance.
The Administrator of General Services may sponsor requests by persons
for special priorities assistance upon determining the defense urgency
of the requested assistance. GSA will: (1) serve as the initial point
of contact for persons needing assistance, (2) verify the accuracy of
the information provided and make reasonable efforts to resolve the
issues, and when necessary, (3) expeditiously forward the request
through established GSA channels to DOC to facilitate timely resolution.
Upon receipt of the request for special priorities assistance, DOC will
take immediate action to effect resolution and will keep GSA advised of
progress.
5. Compliance, Audits, and Training.
In exercising this delegation, the Administrator of General Services
should ensure that both GSA personnel and defense contractors are in
full compliance with the provisions of the DPAS regulation.
Accordingly:
(a) The Administrator of General Services is delegated the authority
to review the implementation of the DPAS by all persons who are in
receipt of rated orders supporting the GSA Supply Distribution Program.
However, this review shall not include inquiries into any unrated
activities of these persons.
(b) The Administrator of General Services shall notify DOC of any
alleged violations of the priorities and allocations provisions of the
Defense Production Act or the DPAS regulation.
(c) The Administrator of General Services should conduct a continuing
training program to ensure that appropriate GSA and contractor personnel
are thoroughly familiar with the provisions of the DPAS and this
delegation.
6. Limitations of Authority.
(a) This delegation is restricted to the GSA Supply Distribution
Program and shall be implemented in accordance with the DPAS regulation,
the Statement of Conditions to this delegation (not published), and any
other regulations and official actions issued by DOC. It does not limit
the authority of the Secretary of Commerce under Executive Order 10480
or other authority.
(b) This delegated authority shall not be used for (1) material
purchased from exclusively retail establishments; (2) procurement of
items to be used primarily for administrative purposes, such as for
personnel or financial management; or (3) direct procurement by or for
GSA of any items specifically set forth in the Statement of Conditions
to this delegation (not published).
7. Redelegations of Authority.
The authority granted by this delegation may be redelegated within
GSA. Any redelegations of such authority shall be made in writing with
a copy furnished to DOC. No other redelegations of such authority shall
be made without the prior written approval of DOC.
8. Effective Date and Revocation of Previous Delegations.
This delegation of authority shall take effect August 29, 1984,
revoking all previous delegations issued by DOC to GSA relating to these
authorities.
Dated: June 21, 1984.
Walter J. Olson,
Deputy Assistant Secretary of Commerce for Export Administration.
of the Federal Emergency Management Agency; Defense
Priorities and Allocations System (15 CFR part 700)
1. Authority.
Defense Production Act of 1950, as amended (50 U.S.C. app. 2061, et
seq.); Executive Order 10480, 18 FR 4939, 3 CFR 1949-1953 Comp., p.
962, as amended; and Defense Mobilization Order (DMO) 3, 44 CFR 322.
2. Purpose.
(a) This document delegates certain authority to the Director,
Federal Emergency Management Agency (FEMA), necessary to the effective
implementation of the Defense Priorities and Allocations System (DPAS)
regulation (15 CFR part 700).
(b) Certain specifics concerning the implementation of this delegated
authority are contained in a Statement of Conditions to this delegation
issued by the Office of Industrial Resource Administration (OIRA),
Department of Commerce (DOC).
3. Rating Authority.
The Director of FEMA is delegated the authority to place, and upon
application, to authorize state and local governments to place, DO rated
contracts and orders in support of federal, state, and local civil
defense programs or projects approved by FEMA as directly related to
programs for the national defense. In placing rated orders, FEMA and
the state and local governments are to use the program identification
symbol N1.
4. Special Priorities Assistance.
The Director of FEMA may sponsor requests by persons for special
priorities assistance upon determining the defense urgency of the
requested assistance. FEMA will: (1) serve as the initial point of
contact for persons needing assistance, (2) verify the accuracy of the
information provided and make reasonable efforts to resolve the issues,
and when necessary, (3) expeditiously forward the request through
established FEMA channels to DOC to facilitate timely resolution. Upon
receipt of the request for special priorities assistance, DOC will take
immediate action to effect resolution and will keep FEMA advised of
progress.
5. Compliance, Audits, and Training.
In exercising this delegation, the Director of FEMA should ensure
that FEMA personnel, federal, state, and local officials, and defense
contractors are in full compliance with the provisions of the DPAS
regulation. Accordingly:
(a) The Director of FEMA is delegated the authority to review the
implementation of the DPAS by all persons who are in receipt of, or
authorized to place, rated orders supporting the FEMA approved federal,
state and local civil defense programs or projects. However, this
review shall not include inquiries into any unrated activities of these
persons.
(b) The Director of FEMA shall notify DOC of any alleged violations
of the priorities and allocations provisions of the Defense Production
Act or the DPAS regulation.
(c) The Director of FEMA should conduct a continuing training program
to ensure that appropriate FEMA personnel, federal, state, and local
officials, and contractor personnel are thoroughly familiar with the
provisions of the DPAS and this delegation.
6. Limitations of Authority.
(a) This delegation is restricted to federal, state, and local civil
defense programs and projects approved by FEMA as directly related to
programs for the national defense, and shall be implemented in
accordance with the DPAS regulation, the Statement of Conditions to this
delegation (not published), and any other regulations and official
actions issued by DOC. It does not limit the authority of the Secretary
of Commerce under Executive Order 10480 or other authority.
(b) This delegated authority shall not be used for (1) material
purchased from exclusively retail establishments; (2) procurement of
items to be used primarily for administrative purposes, such as for
personnel or financial management; or (3) direct procurement by or for
FEMA of any items specifically set forth in the Statement of Conditions
to this delegation (not published).
7. Redelegations of Authority.
The authority granted by this delegation may be redelegated within
FEMA. Any redelegations of such authority shall be made in writing with
a copy furnished to DOC. No other redelegations of such authority shall
be made without the prior written approval of DOC.
8. Effective Date of Delegation.
This delegation of authority shall take effect August 29, 1984.
Dated: June 21, 1984.
Walter J. Olson,
Deputy Assistant Secretary of Commerce for Export Administration.
(49 FR 30414, July 30, 1984; 49 FR 50171, Dec. 27, 1984)
15 CFR 700.93 Pt. 700, App. II
15 CFR 700.93 Appendix II to Part 700 -- Interagency Memorandum of
Understanding
This Understanding sets forth the priorities and allocations
jurisdiction and responsibilities of the Department of Agriculture
(Agriculture) and the Department of Commerce (Commerce) for defense
mobilization in the event of a national emergency, and for emergency
preparedness functions, as they relate to foods which have industrial
uses.
1. Section 201(a) of Executive Order 10480, as amended (E.O. 10480),
and Defense Mobilization Order 3 (DMO 3) (44 CFR 322) provide for the
delegation of authority for the administration of priorities and
allocations functions under the Defense Production Act of 1950, as
amended (50 U.S.C. App. 2061, et seq.), to the Secretary of Agriculture
with respect to food; and to the Secretary of Commerce with respect to
all other materials and facilities not specifically delegated to other
agencies.
2. Section 901 et seq. of Executive Order 11490, as amended (E.O.
11490), delegates to the Secretary of Commerce the authority for
preparing national emergency plans and developing preparedness programs
covering the production and distribution of all materials and the use of
all production facilities, except those that are specifically assigned
to, or under the jurisdiction of other agencies. Section 801 et seq.
of E.O. 11490 provides for the delegation of authority with respect to
the production, processing, distribution, and storage of food resources,
and the use of food resource facilities, to the Secretary of
Agriculture.
3. Section 601(h) of E.O. 10480 defines the term ''food'' as:
* * * all commodities and products, simple, mixed, or compound or
complements to such commodities or products, that are capable of being
eaten or drunk by either human beings or animals, irrespective of other
uses to which such commodities or products may be put, at all stages of
processing from the raw commodity to the products thereof in vendible
form for human or animal consumption * * *. The term ''food'' shall
also include all starches, sugars, vegetable and animal fats and oils,
cotton, tobacco, wool, mohair, hemp, flax fiber, and naval stores, but
shall not include any such material after it loses its identity as an
agricultural commodity or agricultural product.
Section 802(1) of E.O. 11490 defines the term ''food resources'' in
the same language. Accordingly, these terms are used interchangeably in
this Understanding.
4. The functions delegated by these authorities to the Secretaries of
Agriculture and Commerce have been redelegated by the Secretary of
Agriculture to the Administrator, Agricultural Stabilization and
Conservation Service (ASCS), and by the Secretary of Commerce to the
Director, Office of Industrial Resource Administration (OIRA).
1. This Understanding covers only food and agricultural commodities
and products which have industrial uses. Jurisdiction over such
commodities will normally pass to Commerce at the point where the foods
are no longer capable of being eaten or drunk, except as otherwise
provided.
2. The provisions of this Understanding covering fibers are limited
to those specifically mentioned in E.O. 10480 and 11490 (i.e., cotton,
wool, mohair, hemp and flax fiber), and have the purpose of defining the
points at which these fibers lose their identity as agricultural
commodities or agricultural products.
3. Both Agriculture and Commerce have jurisdiction over the major
food commodities listed in section D of this Understanding. For each of
these commodities, the point at which the jurisdiction of Agriculture
will end is indicated and, except as otherwise provided, the
jurisdiction of Commerce will begin at that point.
(a) The points at which the jurisdiction of Agriculture will
terminate are expressed in terms of a particular stage of production or
processing pursuant to the authority provided in E.O. 10480 and 11490,
and at a point considered to be most administratively feasible.
(b) Consideration is given wherever possible to the structure of an
industry. The wet-milling industry, for example, is large and
integrated and it is desirable that Agriculture have jurisdiction over
the raw products while they are a part of this industry and until they
enter the processes of other industries which result in their becoming
nonfood or nonagricultural products. As an illustration, corn starch
for textile sizing would be under the jurisdiction of Agriculture while
it is being extracted from the corn and prepared for use by the textile
industry. It would still be under the jurisdiction of Agriculture until
it enters the textile manufacturing process. At this point,
jurisdiction over this commodity shifts to Commerce.
(c) Commodities such as fats and oils, grain products, egg products,
starch from all sources, spices, and tartaric acid are used for the
manufacture of so many nonfood or nonagricultural products that it is
not practical to enumerate all of these products in section D and to
identify in each case the exact beginning process. Consequently, the
principle for determining the respective jurisdiction of the two
Departments in cases of this type is expressed broadly and supplemented
by a few examples of nonfood and nonagricultural products so as to
clarify the application of the principle. These examples are not
intended to be all-inclusive.
4. Imports and exports of food and agricultural commodities and
products in any form prior to industrial uses are within the
jurisdiction of Agriculture, subject to meeting requirements that may be
imposed by any other agency in the exercise of its authority.
5. Agriculture will, with noted exceptions, allocate and exercise
priority controls on food and agricultural commodities and products,
taking into account claims presented by Commerce. However, the
suballocation of food and agricultural commodities or products for
conversion into non-food and non-agricultural commodities or products
will be made in accordance with the recommendations of Commerce.
6. It is understood that relationships between Agriculture and
Commerce involving jurisdiction over particular functions and particular
commodities may have to be amplified at a later time. It is also
recognized that there will be situations in which operations of the same
person, as defined in section 702(a) of the Defense Production Act of
1950, as amended (50 U.S.C. App. 2152(a)), will be affected by the
exercise of the respective authorities of the two Departments under this
Understanding. To avoid overlapping and duplication of reporting and
related operations in such situations, it is agreed that the two
Departments will work out specific cooperative arrangements whereby the
facilities of one shall be utilized by the other and that efforts will
be made to provide the most feasible arrangements for administering
necessary program controls.
7. To assure that both Agriculture and Commerce have full authority
to implement their respective responsibilities under E.O. 10480 and
11490, and DMO 3, as well as to effectuate the provisions of this
Understanding, each Department delegates to the other the requisite
authority for the exercise of priorities and allocations functions as
set forth in this Understanding.
The following list identifies some major food and agricultural
commodities and commodity groups in which both Agriculture and Commerce
have an interest and provides the point at which Agriculture's
jurisdiction ends and Commerce's jurisdiction begins. This list is not
all-inclusive but it does cover the major items for which jurisdiction
might become an issue.
1. Agriculture shall have jurisdiction over the following commodities
until they enter any manufacturing process and lose their identity as
food or as agricultural commodities or products (examples are set forth
in parentheses after the name of the commodity):
(a) Egg products. (Shampoos, products used in printing,
pharmaceuticals)
(b) Fats and oils. (Paints, soap, varnishes, lacquers, printer's
ink, cosmetics, pharmaceuticals)
(c) Fatty acids. (Paints, soap, cosmetics, chemicals,
pharmaceuticals)
(d) Grain and grain products, including dextrin, corn syrups, grain
sugars, lactic acid, gluten, and low-grade wheat flour. (Textiles,
adhesives, leather, core binders, pharmaceuticals, nonbeverage alcohol)
(e) Molasses, including blackstrap and high-test, and potatoes.
(Nonbeverage alcohol)
(f) Spices, essential oils. (Cosmetics)
(g) Starches. (Adhesives, asbestos, textiles, explosives)
(h) Sugars. (Insecticides, plasticizing agents, adhesives)
(i) Tartaric acid. (Products used in photography, dyeing, textile
printing)
2. Agriculture shall have jurisdiction over the following commodities
until the specifically designated point in their processing, except as
otherwise provided:
(a) Cotton lint and linters, hemp and flax fiber -- When the bale is
opened for the purpose of processing in the mill in which it is opened.
This authority shall extend to the delivery and distribution of soft
types of cotton waste but shall not include control over the use of such
waste in the mill producing it.
(b) Milk and milk products -- When the milk and milk products enter a
plant where they are to be used or processed for industrial purposes as
distinct from use as human food or animal feed. Agriculture shall have
jurisdiction over imports of milk and milk products intended for use as
human food or animal feed, while Commerce shall have jurisdiction over
imports intended for industrial purposes only.
(c) Wool and mohair -- When the wool and mohair (grease and scoured,
shorn and pulled) enter a plant where they are to be used, or
manufactured into a final product. Inventories of scoured wool or
scoured mohair held by manufacturers for their use in producing other
products, whether by incorporation into such products or otherwise,
shall be controlled by Commerce. The jurisdiction of Agriculture shall
extend to the delivery and distribution of noils but shall not include
control over the use of noils by the mill producing them.
(d) Naval stores:
(1) Tall oil (sulfate naval stores). Commerce shall have
jurisdiction over the production, distribution, processing, and
allocation. The distribution of tall oil fatty acids shall be under the
jurisdiction of Agriculture.
(2) Wood. Commerce shall have jurisdiction over production,
distribution, processing, and allocation.
(3) Gum. Agriculture shall have jurisdiction over production through
the first processing of the gum. Commerce shall have jurisdiction over
allocation.
(4) Commerce will consult with Agriculture before allocating naval
stores in order to avoid conflict with programs administered by
Agriculture.
3. The following commodities are under the jurisdiction of the
designated Department:
(a) Ice -- Agriculture.
(b) Tobacco and tobacco products -- Agriculture.
(c) Hides and leather, hair and bristles, feathers, soap.
detergents, beeswax, pharmaceuticals (including medicines and vitamins),
acetic acid, chemical leavening compounds and salt -- Commerce.
4. In order to further clarify the division of authority for fats and
oils, Schedule A to this Understanding lists major fats and oils, and
fat and oil products, over which Agriculture has jurisdiction and the
major products of fats and oils, and products produced using fats and
oils, over which Commerce has jurisdiction.
5. It is recognized that quantities of certain commodities may be
needed for food use which are under the jurisdiction of Commerce.
Conversely, raw materials for manufacturing may be needed which are
under the jurisdiction of Agriculture. In situations of this kind and
for other similar commodities not listed in this section, working
arrangements will be developed between ASCS and OIRA as the need arises
pursuant to the principles set forth in this Understanding.
This Memorandum of Understanding supersedes the Memorandum of
Agreement between the Administrators of the Agricultural Marketing
Service and the ASCS of the Department of Agriculture, and the Acting
Deputy Assistant Secretary for Competitive Assessment and Business
Policy of the Department of Commerce, concerning foods which have
industrial uses, and signed by them on November 2, 7, and 10, 1973,
respectively (38 FR 33504, December 5, 1973); and shall take effect
August 29, 1984.
Department of Agriculture
Everett Rank,
Administrator, Agricultural Stabilization and Conservation Service
Date: June 15, 1984.
Department of Commerce
John A. Richards,
Director, Office of Industrial Resource Administration
Date: June 14, 1984.
I. Fats and oils and fats and oils products under the jurisdiction of
Agriculture:
A. Animal and marine.
Lard
Marrow
Tallows and greases
Wool grease and lanoline
Neats foot oil
Cod
Dogfish
Fulachon
Herring
Menhaden
Pilchard
Salmon
Sardine
Seal
Shark
Whale
Cod
Dogfish
Shark
Swordfish
Tuna fish
Fatty acids
Foots
Oleo oil and oleo searin
Soap stocks
B. Vegetable.
Cocoa butter
Fatty acids
Lecithin
Oiticic
Olive residue
Soap stocks
Tallows and greases
Babassu nut
Castor
Corn
Coconut
Cottonseed
Linseed
Olive
Palm
Palm kernel
Peanut
Rapeseed
Safflower seed
Sesame
Soybean
Sunflower seed
Tung
Cashew nut
Cohune
Colza
Hemp seed
Kapok seed
Murumuru
Mustard
Ouricury
Perilla
Poppy seed
Rubber seed
Tea seed
Tucum
C. Edible fats and oils products, including:
Butter
Cooking oil and compounds
Lard compounds
Margarine
Salad oils
Shortenings
D. Combinations and mixtures of animal, marine, vegetable, nut and
seed fats and oils, or any of them.
II. Products of fats and oils and products produced using fats and
oils under the jurisdiction of Commerce:
Coated fabrics and floor coverings
Glycerine
Inedible products of fats and oils
Paints, varnishes, lacquers
Printer's ink
Soap
This Understanding sets forth the priorities and allocations
jurisdiction and responsibilities of the Department of Agriculture and
the Department of Commerce for defense mobilization in the event of a
national emergency, and for emergency preparedness functions, as they
relate to the domestic distribution of farm equipment.
1. Section 201(a) of Executive Order 10480, as amended (E.O. 10480),
and Defense Mobilization Order 3 (DMO 3) (44 CFR 322) provide for the
delegation of authority for the administration of priorities and
allocations functions under the Defense Production Act of 1950, as
amended (50 U.S.C. app. 2061, et seq.), to the Secretary of Agriculture
with respect to the domestic distribution of farm equipment; and to the
Secretary of Commerce with respect to all other materials and facilities
not specifically delegated to other agencies.
2. Section 601(i) of E.O. 10480 defines the term ''farm equipment''
to mean equipment manufactured for use on farms in connection with the
production or processing of food.
3. Section 901 et seq. of Executive Order 11490, as amended (E.O.
11490), delegates to the Secretary of Commerce the authority for
preparing national emergency plans and developing preparedness programs
covering the production and distribution of all materials and the use of
all production facilities, except those that are specifically assigned
to, or under the jurisdiction of other agencies. Section 801 et seq.
of E.O. 11490 provides for the delegation of this authority with respect
to the domestic distribution of farm equipment to the Secretary of
Agriculture.
4. The functions delegated by these authorities to the Secretaries of
Agriculture and Commerce have been redelegated by the Secretary of
Agriculture to the Administrator, Agricultural Stabilization and
Conservation Service (ASCS), and by the Secretary of Commerce to the
Director, Office of Industrial Resource Administration (OIRA).
1. The term ''farm equipment'' as used in E.O. 10480 and 11490, for
the purposes of this Understanding, includes only those items of
machinery, equipment, attachments, and repair or replacement parts
identified in Schedule A to this Understanding.
2. In a national emergency or mobilization situation, OIRA may
request ASCS to make special distribution of the farm equipment items
listed in Schedule A that can be used off the farm for civil defense and
life saving purposes. ASCS will give full consideration to these
requests in accordance with the priorities and allocations policies of
the Federal Government in effect at that time.
This Memorandum of Understanding supersedes the Memorandum of
Understanding and Agreement between the Administrator of the ASCS of the
Department of Agriculture, and the Acting Deputy Assistant Secretary for
Competitive Assessment and Business Policy of the Department of
Commerce, concerning the scope of the term ''Farm Equipment'', and
signed by them on November 7 and 10, 1973, respectively (38 FR 34749,
December 5, 1973); and shall take effect August 29, 1984.
Department of Agriculture
Everett Rank,
Administrator, Agricultural Stabilization and Conservation Service
Date: June 15, 1984.
Department of Commerce
John A. Richards,
Director, Office of Industrial Resource Administration
Date: June 14, 1984.
Farm Tractors, 2-Wheel Drive, 20 to 39 PTO HP
Farm Tractors, 2-Wheel Drive, 40 to 99 PTO HP
Farm Tractors, 2-Wheel Drive, Over 100 PTO HP
Farm Tractors, 4-Wheel Drive,
Bedders, Bed Levelers, Shapers, and Splitters
Blockers and Thinners, row crop
Cultivators, Field, Row Crop, Tobacco and Vineyard, mounted and pull
type
Harrows, including: spike-tooth, spring-tooth, tine-tooth, disk,
rotary, offset, knife, oscillating, bush and bog, and tandem disk
Land Levelers
Middlebusters, Ridgebusters, and Clodbusters
Mulch Tillage Implements
Plows, including: moldboard, chisel, ditching, terracing, and
one-way disk
Pulverizers, stalk
Ridgelevelers
Rod Weeders
Rotary Hoes and Tillers, field type
Rollers and Cultipackers, including combination harrow-packers
Shredders, brush and stalk, bush hog
Stubble Shavers, cane
Subsoilers, Tractor mounted and pull-type
Tillers, basin and disk
Tool bars and carriers
Transport carriers, farm implement
Anhydrous Ammonia Applicators, Pumps, Tanks and Tank Wagons
Dry and Liquid Fertilizer Attachments for Drills and Planters
Fertilizer Distributors and Applicators
Fertilizer storage bins and tanks
Pumps, Liquid Fertilizer
Side-Dressing attachments
Spreaders, Lime and Fertilizer, Tractor or Truck mounted and pull
type
Sprayers, Liquid fertilizer, Truck mounted and pull type
Drills and Planters, including fertilizer attachments
Grass Seeder, Broadcast-type, Tractor mounted or pull type
Grass Seeder attachments, Drill and Tillage equipment
Listers
Planters, Minimum or no Tillage, Tractor mounted or pull type
Potato Planters, Brushers, Cutters, and Desprouters
Seeders
Transplanters
Dusters, Crop, Field, Livestock, Poultry, Orchard, and Vineyard
Foggers and Mist Blowers
Granular Chemical Applicators, Broadcast and Band-type
Herbicide Applicators, Low Volume
Sprayers, Field, Livestock, Poultry, Orchard, and Vineyard, Air Mist,
Boomtype and Boomless, Trailer or Tractor mounted and self-propelled
Augers, Conveyors and Elevators, farm type, portable and stationary,
with or without wheels
Bunchers and Tiers, Vegetable, farm type
Combines, Harvester-thresher, self-propelled and pull type, including
corn head and windrow attachments
Corn Cribs
Corn Pickers and Picker-shellers, self-propelled, pull type, and
semi-mounted
Cotton Pickers and Strippers, self-propelled, Tractor mounted and
pull type
Crop and Grain Dryers and Fans, batch, bin, and continuous operation
types
Curers, Tobacco
Grain Bins, including: perforated floors, ladders, spreaders,
stirring devices, unloaders, and ventilation equipment
Grain Blowers
Harvesters, Harvesting and Handling Equipment for Corn, Grain,
Vegetables, Peanuts, Tobacco, Onions and Nuts
Hullers, Graders, Sorters, Sackers, Conveyors, farm type for
Potatoes, Fruit, Vegetables, Grain, Seed and Nuts
Orchard and Vineyard Pruning Equipment, power
Peanut Drying Equipment
Potato Diggers, Pickers and Baggers
Power Units for Harvesting Equipment, self-propelled
Sugar Beet Harvesters, Toppers, Lifters, and Loaders
Sugar Cane Harvesting Equipment
Toppers, Crop and Vegetable
Windrowers and Swathers, Dry Edible Beans and Pea Vine
Balers, Twine, and Wire, self-propelled and pull type, including
round bale type
Forage Blowers and Cutter Blowers, Pipe, and Spouts
Forage Harvesters, self-propelled, Tractor mounted and pull type
Forage Wagons and Boxes, running gear and truck mounted
Giant Hay Balers, Stackers and Transportation Equipment
Hay Tedders
Hay Wafering and Cubing Machines
Mowers, Choppers, conditioners, Mower-conditioners, and Windrowers,
field, flail, rotary, or sickle bar, mounted or pull type
Rakes, side delivery
Loaders, loose hay
Loaders, Stackers and Bale Throwers
Barn Manure Cleaners, dairy, livestock and poultry types
Bale Feeders, giant-size Bale and Stack types
Brooders, poultry and hog
Bunk Feeder Systems, including: Wagon or truck-mounted feeder boxes
Carriers, Hay, Litter and Feed, overhead and track type
Dairy Barn Equipment, including: pens, stanchions and stalls
Egg Gathers and Collecting Systems, automatic
Egg Room Coolers and Humidifiers
Egg Graders, Candlers and Washers
Feed Mills, Grinder-mixers, Roller Mills, and Mixers, stationary and
portable
Feed Storage Bins and Tanks, elevated, bulk
Feed and Grain Metering Devices
Feeders and Waterers, cattle, sheep, hog and poultry, automatic and
manual
Hog Confinement Systems, Farrowing Stalls and Feeding Systems
Incubators, poultry
Livestock Confinement Buildings, including: feeding, watering,
ventilation and cleaning systems
Livestock Handling Gates, Pens and Chutes
Liquid Manure Pumps and Tanks
Manure Loaders, Tractor mounted
Milk Cooling Tanks, bulk and can type
Milking Machines, Pipelines and Transfer Stations
Milk Room Equipment, including: water heaters, sterilizing and
washing tanks
Milking Parlor Stalls, including: feeding systems
Poultry Cages, Feed and Water Systems
Silo, upright and concrete trench-type
Silo Unloaders, upright and trench-type, top or bottom
Silo-filling Equipment, including: pipe and distribution equipment
Spreaders, Barn and Liquid Manure
Tanks, Livestock, Dipping and Stock Water
Ventilation Systems, automatic, electric
Jacks, Pump
Pumps, Hand, Windmill, electric, PTO and motor-powered
Water Systems including: storage and/or pressure tanks, domestic and
farmstead, deep and shallow well, jet and non-jet
Ditch Gates, Furrow Openers, Levee Plows
Pipe, Couplers, Valves and Sprinkler Heads
Systems Controls, automatic and center pivot
Systems Pumps, deep well, shallow well and surface water supply type
Alcohol Distilling Plants, farm type
Chain Saws
Cleaners and Graders, farm type, grain and seed
Diggers, post-hole, Tractor mounted, farm type
Electric Generating Plants, farm type, continuous duty and standby,
Tractor or motor powered
Fencing Materials
Log Skidders and Splitters
Post Drivers and Pullers, power, farm type
Tracks, Crawler, combine and wheel Tractor
Wagon Running Gears, farm type
Wagon Boxes, including: Auger unloading, barge and flare, bunk
feeding, forage, feed-mixing, gravity and hydraulic dump
Windmill Towers and Heads
Parts manufactured specifically for use in the maintenance and repair
of the farm equipment (including plowshares and disk blades) listed in
this Schedule.
This Understanding sets forth the jurisdiction and responsibilities
of the Department of Energy (DOE) and the Department of Commerce (DOC)
for defense mobilization, emergency preparedness, and resource
management programs under the authorities listed in section B, in the
event of a national emergency, as such programs relate to the production
and distribution of: (1) chemicals and fluids made especially for use
in the petroleum and gas industry; (2) oil and gas field machinery and
equipment; and (3) petrochemicals derived from oil, gas, and natural
gas liquids.
1. Pursuant to section 201(a) of Executive Order 10480, as amended
(E.O. 10480), Defense Mobilization Order 3 (DMO 3) (44 CFR 322)
delegates authority for the administration of priorities and allocations
functions under the Defense Production Act of 1950, as amended (50
U.S.C. app. 2061, et seq.), to the Secretary of Energy with respect to
petroleum, gas, solid fuels, and electric power; and to the Secretary
of Commerce with respect to all other materials and facilities not
specifically delegated to other agencies.
2. Executive Order 11490, as amended (E.O. 11490), delegates to the
Secretary of Commerce the authority for preparing national emergency
plans and developing preparedness programs covering the production and
distribution of all materials, and the use of all production facilities
except those that are specifically assigned to, or under the
jurisdiction of, other agencies. Such an exception is provided for the
production and distribution of, and the use of facilities for, petroleum
and gas. E.O. 11490 provides for the delegation of this authority to
the Secretary of Energy.
3. The functions delegated by these authorities to the Secretaries of
Energy and Commerce have been redelegated by the Secretary of Energy to
the Assistant Secretary for Environmental Protection, Safety, and
Emergency Prepareness, and by the Secretary of Commerce to the Director,
Office of Industrial Resource Administration (OIRA).
The primary use of a product or material is the basis for the
division of Departmental jurisdiction set forth below. Any product or
material not specifically identified in this Understanding which is used
primarily as a fuel or in a primary manufacturing process to produce
fuel, is under the jurisdiction of DOE. Generally, any non-fuel product
or material, or any product or material which is used primarily as an
industrial raw material, is under the jurisdiction of DOC. In the event
that questions arise with respect to jurisdiction over particular
products, materials, or production facilities, it is agreed that the two
Departments will resolve these questions in such a manner as to provide
the most feasible arrangements for program administration.
1. Production.
Department of Energy: DOE has jurisdiction over the production of:
(a) petroleum and gaseous fuels, natural gas liquids, and petroleum
lubricants, including ''refinery finished products,'' ''unfinished
oils,'' and ''petrochemical feedstocks''; (b) ''petrochemicals'' from
processing units located within a petroleum refinery where the weight of
''petrochemicals'' in the output of the processing unit constitutes less
than 30 percent by weight of the net input to the unit; (c) n-paraffin
''petrochemical intermediates''; (d) ''special petroleum chemical
supplies''; and (e) any fossil fuel or synthetic product not
specifically indentified which is or can be used as a fuel or lubricant.
Department of Commerce: DOC has jurisdiction over the production of:
(a) all ''chemicals'' including ''petroleum processing catalysts'' and
''fuel combustion improvers''; and (b) ''petrochemicals'' including
those from processing units located within a petroleum refinery where
the weight of ''petrochemcials'' in the output of the processing unit
constitutes 30 percent or more by weight of the net input to the unit;
and (c) oil and gas field machinery and equipment as identified in
Schedule A to this Understanding, as well as any machinery, equipment,
and technologies not yet developed for obtaining petroleum and natural
gas.
2. Facilities.
Department of Energy: DOE has jurisdiction over all facilities for
which production jurisdiction has been assigned to it by this
Understanding.
Department of Commerce: DOC has jurisdiction over all facilities for
which production jurisdiction has been assigned to it by this
Understanding.
3. Distribution.
Department of Energy: DOE has jurisdiction over the distribution of:
(a) all petroleum, gaseous fuels (when such jurisdiction as authorized
by E.O. 11490 is not exercised by the Federal Energy Regulatory
Commission), natural gas liquids, and petroleum lubricants; (b) all
''special petroleum chemical supplies,'' ''petroleum processing
catalysts,'' and ''fuel combustion improvers''; (c) ''petrochemical
feedstocks'' except those produced or gathered specifically for a
chemical operation; (e) any other fossil fuel or synthetic product
which is or can be used as a fuel; and (f) oil and gas field machinery
and equipment as identified in Schedule A to this Understanding, as well
as any machinery, equipment, and technologies not yet developed for
obtaining petroleum and natural gas.
Department of Commerce: DOC has jurisdiction over the distribution
of: (a) all ''chemicals'' including ''petrochemicals'' but excluding
those chemical product groups assigned to DOE; (b) ''petrochemical
feedstocks'' specifically produced or gathered for a chemical operation;
and (c) ''non-fuel or non-lubricant petroleum products.''
Under this Understanding, the term ''petroleum'' means crude oil,
synthetic liquid fuel, their products and associated hydrocarbons,
including pipelines for their movement and facilities specially designed
for their storage; and the term ''gas'' means natural gas (excluding
helium) and manufactured gas (but not industrial gases), including
pipelines for their movement and facilities specially designed for their
storage, when such juridiction as authorized by E.O. 11490 is not
exercised by the Federal Energy Regulatory Commission. For the purpose
of assigning jurisdiction under this Understanding, the following
additional definitions shall apply:
1. ''Petrochemical Feedstocks''
Includes hydrocarbon materials obtained from petroleum and natural
gas when used as ''feedstock'' or raw material for the production of
''primary petrochemicals'' or ''petrochemical intermediates.'' These
materials also include:
Natural gas (methane) processed to a quality suitable for pipeline
transmission;
Natural gas liquids which are the several low boiling point, lower
molecular weight hydrocarbons that include ethane, propane, butanes,
pentanes, and liquified petroleum gases obtained from the processing of
natural gas;
Naphtha (light petroleum liquids) which is a medium boiling point
range mixture of hydrocarbons obtained from the processing of natural
gas, crude oil, or petroleum refining. Naphtha is the major component
of gasoline. The usual distillation range of naphtha feedstock is
100-400 F; and
Gas oil (heavy petroleum liquids) which is a high boiling point
mixture of hydrocarbons obtained from the processing of crude oil or
petroleum refining. Gas oil is the major component of distillate grades
of fuel oil. Atmospheric gas oil may comprise hydrocarbons in the
distillation range 400-650 F; vacuum gas oil may comprise higher
boiling materials in the distillation range 650-1000 F.
2. ''Chemicals''
For the purpose of this Understanding, ''chemicals'' shall comprise
those products listed under Major Group 28, Chemical and Allied
Products, Standard Industrial Classification Manual, 1977 Edition; and
shall specifically include ''petrochemicals,'' ''petroleum processing
catalysts,'' ''fuel combustion improvers''; but shall exclude ''special
petroleum chemical supplies.''
3. ''Petrochemicals''
Chemical materials which, directly or indirectly, are manufactured
from petrochemical feedstock hydrocarbons. These materials include:
Primary petrochemicals produced directly from feedstocks by chemical
conversion or breakdown and mainly used for the production of
''intermediates'' or petrochemical ''products'';
Petrochemical intermediates generally produced by chemical converson
of primary petrochemicals to form more complicated derived compounds.
Such compounds serve as the raw material for synthesis of petrochemical
''products,'' and for numerous other materials; and
Petrochemical products which are end products of the chemical
industry produced by chemical conversion of ''primary'' petrochemicals
or petrochemical ''intermediates.''
4. ''Refinery Finished Products''
Any one of the petroleum oils or mixtures of oils which can be used
without further processing, including:
Liquified petroleum gases (LPG);
Gasoline;
Jet fuel;
Naphtha;
Distillate fuel oils;
Lubricating oils and greases;
Residual fuel oils;
Asphalt; and
Natural gas products -- natural gasoline.
5. ''Unfinished Oils''
Semi-finished refinery products, or unseparated mixtures of refinery
products, which are further processed for production of ''refinery
finished products.''
6. ''Special Petroleum Chemical Supplies''
Products made especially for use in the production, refining and
compounding of petroleum fuels and lubricants, including:
Hydrogen produced in a refinery for use in petroleum processing; and
Special additives:
for fuels and lubricants;
to facilitate the drilling of oil and gas wells;
to stimulate the production of oil and gas for enhanced oil recovery;
and
to facilitate the pipeline transmission of petroleum.
7. ''Non-fuel or Non-lubricant Petroleum Products''
Certain products produced in the course of the refining of petroleum
whose primary uses are other than as fuels or lubricants, such as:
Asphalts;
Coke, petroleum -- green and calcined;
Cresylic acids;
Naphthenic acids;
Oils, rubber extending;
Solvents -- aliphatic and aromatic hydrocarbons;
Waxes, refined -- paraffin and micro-crystalline; and
White oils, petrolatums, and other oils for medicinal, pharmaceutical
and cosmetic purposes.
8. ''Petroleum Processing Catalysts''
Solid inorganic compositions used in petroleum refining to facilitate
the conversion of hydrocarbons by chemical reaction, including:
Catalytic cracking;
Hydrocracking;
Reforming;
Isomerization;
Desulfurization; and
Hydrotreating.
9. ''Fuel Combustion Improvers''
Chemical compostions added to liquid petroleum fuels to improve
combustion characteristics, including:
Ethanol (ethyl alcohol);
Methanol (methyl alcohol);
Methyl tertiary butyl ether;
Tertiary butyl alcohol;
Tetraethyl lead and tetramethyl lead, and their blends for use as
anti-knock materials; and
Other products such as amyl nitrate, hexyl nitrate, n-methyl aniline,
and the manganese-methyl cyclopentadiene complexes.
To ensure that DOE and DOC have the requisite authority to implement
their responsibilities under E.O. 10480 and 11490, and DMO 3, as well as
to effectuate the provisions of this Understanding, each Department
delegates to the other its authority for the exercise of priorities and
allocations functions under Section 101(a) of the Defense Production Act
of 1950, as amended, with respect to the facilities, materials, and
products specified in this Understanding.
This Memorandum of Understanding shall take effect August 29, 1984,
superseding the Memorandum of Agreement between the Department of the
Interior and the Department of Commerce that became effective on October
30, 1973 (38 FR 30896, November 8, 1973). The Department of the
Interior's authority under this Memorandum of Agreement was transferred
to the Department of Energy effective October 1, 1977, by Executive
Order 12038 (43 FR 4957, February 7, 1978).
Department of Energy
H. A. Merklein
Assistant Secretary, International Affairs and Energy Emergencies
Date: July 10, 1984.
Department of Commerce
John A. Richards,
Director, Office of Industrial Resource Administration
Date: June 20, 1984.
Transportation (trucks, boats, helicopters)
Drilling (rigs, pipes, pumps, engines, tanks, etc.)
Drilling Fluids (weighting materials, chemicals, clays, etc.)
Well Equipment (casing, carbon and alloy steel wellheads)
Well Equipment (Christmas trees, tubing, liners, safety valves, etc.)
Completion Equipment (workover or drilling rig, wireline unit)
Well Services (sand control, acidizing, fracturing, cleanout)
Pipe
Structures
Vessels
Instruments
Hardware and Accessories
Associated Gas Facilities
Field Gathering System
Compression Facilities
Processing Facilities
Rod Pump
Gas Lift
Submersible Pumps
Maintenance
Well Equipment
Well Servicing Equipment
Well Services
Materials
Waterflooding
Gas Injection
Tertiary Processes
This Understanding sets forth the jurisdiction and responsibilities
of the Department of the Interior and the Department of Commerce for
defense mobilization, emergency preparedness programs, and resource
management in the event of a national emergency as they relate to stages
of processing and types of facilities concerning certain minerals. This
Understanding also provides for a delegation of certain authority to the
Secretary of the Interior which is presently assigned to the Secretary
of Commerce.
1. Section 201(a) of Executive Order 10480, as amended (E.O. 10480),
and Defense Mobilization Order 3 (DMO 3) (44 CFR 322), provide for the
delegation of authority to the Secretary of Commerce for administration
of priorities and allocations functions under the Defense Production Act
of 1950, as amended (50 U.S.C. App. 2061, et seq.), for materials and
facilities not specifically delegated to other agencies. Section 602 of
E.O. 10480 provides for redelegation of this authority.
2. Section 901 et seq. of E.O. 11490 provides for the delegation of
authority to the Secretary of Commerce for preparing national emergency
plans and developing preparedness programs covering the production and
distribution of all materials and the use of all production facilities,
except those that are specifically assigned to, or under the
jurisdiction of, other agencies. Such an exception is provided for the
production and related distribution of minerals. Section 701 et seq.
of E.O. 11490 provides for the delegation of this authority to the
Secretary of the Interior.
3. Section 702(5) of E.O. 11490 defines the term ''minerals'' to
mean:
* * * all raw materials of mineral origin * * * obtained by mining
and like operations and processed through the stages specified and at
the facilities designated in an agreement between the Secretary of
Commerce as being within the emergency preparedness responsibilities of
the Secretary of the Interior.
This Understanding implements this requirement.
4. The functions delegated by these authorities to the Secretaries of
Commerce and the Interior have been redelegated by the Secretary of
Commerce to the Director, Office of Industrial Resource Administration
(OIRA), and by the Secretary of the Interior to the Director, Bureau of
Mines.
1. Department of the Interior. Schedule A to this Understanding
contains a listing of mineral commodities and related facilities and
materials. With respect to the mineral commodities listed in Column 1
of Schedule A, the Secretary of the Interior shall have emergency
preparedness and mobilization responsibilities for the facilities listed
in Column 2 of the Schedule, the production of materials by these
facilities, and the distribution of the materials listed in Column 3 of
the Schedule.
2. Department of Commerce. With respect to the mineral commodities
listed in Column 1 of Schedule A, the Secretary of Commerce shall have
emergency preparedness and mobilization responsibilities for all
facilities other than those listed in Column 2 of the Schedule, for the
production of materials by these other facilities, and for distribution
of all materials not listed in Column 3 of the Schedule.
1. Pursuant to the authority of section 602(b) of E.O. 10480, the
Secretary of Commerce hereby delegates to the Secretary of the Interior
with respect to the facilities and materials listed in Columns 2 and 3
of Schedule A, all the functions under the Defense Production Act of
1950, as amended (DPA), which are delegated or assigned to the Secretary
of Commerce by or pursuant to the following sections of E.O. 10480:
(a) Section 201(a), as implemented by section 3(a) of DMO 3 (relating
to exercise of priorities and allocations authority under Title I of the
DPA);
(b) Section 301 (relating to development of measures for expansion of
production of materials necessary for the national defense);
(c) Section 302 (relating to guarantees of loans or contracts in
connection with the expediting of production and deliveries or services
under Government contracts for the procurement of materials or the
performance of services for the national defense, etc.);
(d) Section 312 (relating to recommendations for action under
sections 302 and 303 of the DPA);
(e) Section 501 (relating to consultation with industry and making
recommendations to the Director of the Federal Emergency Management
Agency respecting voluntary agreements under section 708 of the DPA);
and
(f) Section 602 (relating to the exercise of various general
administrative functions under Title VII of the DPA).
2. This delegation shall be effective only with respect to the
facilities and materials listed in Columms 2 and 3 of Schedule A.
This Memorandum of Understanding and Delegation of Authority
supersedes the Agreement between the Secretary of the Interior and the
Secretary of Commerce and signed by them on June 21, 1962, and the
Delegation of Authority from the Secretary of Commerce to the Secretary
of the Interior published in 32 FR 2462 on February 4, 1967; and shall
take effect August 29, 1984.
Department of the Interior
Robert C. Horton,
Director, Bureau of Mines
Date: June 21, 1984.
Department of Commerce
John A. Richards,
Director, Office of Industrial Resource Administration
Date: June 20, 1984.
15 CFR 700.93 -- Pt. 700, App. III
15 CFR 700.93 -- Appendix III to Part 700 -- Form ITA-999; Request for
Special Priorities Assistance
Insert illustrations 99
Insert illustrations 100
Insert illustrations 101
Insert illustrations 102
15 CFR 700.93 -- Pt. 700, App. IV
15 CFR 700.93 -- Appendix IV to Part 700 -- Memorandum of Understanding
on Priorities and Allocations Support Between the U.S. Department of
Commerce and the Canadian Department of Supply and Services
Since 1950, the United States and Canada have been assisting each
other on priorities and allocations for programs important to the
defense of both nations. Details on the implementation of that
assistance were spelled out in the U.S. Defense Priorities System
Regulation No. 2 (DPS Reg. 2), Operations of the Priorities and
Allocations System between Canada and the United States (15 CFR part
351). The Defense Priorities and Allocations System (DPAS) regulation
(15 CFR part 700) supersedes the Defense Materials System and Defense
Priorities System regulations (15 CFR parts 330 through 351), including
DPS Reg. 2. While the revised regulation addresses the procedures for
obtaining priorities and allocations support from the United States and
Canada, it does not fully detail the working relationship between the
United States and Canada. Accordingly, the following Memorandum of
Understanding is set forth between the U.S. Department of Commerce and
the Canadian Department of Supply and Services.
1. The Office of Industrial Resource Administration, U.S. Department
of Commerce (DOC), is the United States point of contact for the
Canadian government with respect to priorities and allocations.
2. The Supply Information and Data Management Branch, Canadian
Department of Supply and Services (DSS), is the Canadian point of
contact for the U.S. government with respect to priorities and
allocations.
1. DOC will authorize the DSS to use priority ratings, including
those for the procurement of controlled materials, in the United States
in support of the following programs authorized by the Federal Emergency
Management Agency:
D1 -- Canadian Military Programs
D2 -- Canadian Production and Construction
D3 -- Canadian Atomic Energy Program
2. DOC must receive requests for priority rating authority, by
program, at least ninety days in advance of the calendar quarter in
which the authorization is required. Requests with respect to
controlled materials requirements must be received at least 240 days in
advance of the calendar quarter in which authorization is required.
DSS may authorize the use of the ''DX'' rating symbol for
procurements in the United States which are in support of U.S. ''DX''
rated programs.
Priority ratings may not be used for procurements in the United
States of (1) civilian items for resale in Military Exchanges or the
packaging for such items; (2) material purchased from exclusively
retail establishments; (3) direct procurement of those Federal Supply
Classification classes, groups, or items specified in Attachment A to
this Understanding, unless those items are to be used as production
material for an authorized program; or (4) procurement of items to be
used primarily for administrative purposes, such as for personnel or
financial management.
1. DOC will provide special priorities assistance as needed to
Canadian procurements in the United States which are in support of D1,
D2, and D3 programs when requests for such assistance are sponsored by
DSS.
2. DSS will provide assistance to United States procurements in
Canada which are in support of authorized programs when requests for
such assistance are sponsored by DOC.
1. Canadian requests for special priorities assistance from the
United States will be submitted to DOC on Form ITA-999, ''Request for
Special Priorities Assistance''.
2. Requests for priority rating authority will be submitted to DOC on
Form DSS-1451-1, ''Application for U.S. Priority Rating Covering
Importation of Quarterly Requirements of Materials from the United
States'', on Form DSS-1451-2, ''Application for U.S. Priority Rating
Covering Specific Materials'', or other forms as may be established by
DSS.
3. DSS will report monthly on the number of rating authorizations and
their dollar value against DOC rating authorizations during the previous
month.
4. DSS will report, two months following the close of each calendar
quarter, the number and quantity of controlled materials allotments
issued against DOC authorizations for each program during that quarter.
5. United States requests for assistance from Canada will be
submitted to DSS by letter.
1. DSS will ensure that Canadian Government personnel and Canadian
defense contractors are in compliance with the provisions of the DPAS
when placing rated orders in the United States, including those for
controlled materials.
2. DOC will ensure that U.S. Government personnel and U.S.
contractors are in compliance with the provisions of the DPAS when
placing rated orders in Canada, including controlled materials.
3. The DSS will inform DOC of any alleged violations of the DPAS of
which it may become aware.
1. The DSS will develop and implement training programs on the DPAS
for appropriate Canadian Government procurement and contract
administration personnel and contractor personnel.
2. DOC will develop and implement training programs on the DPAS for
appropriate U.S. Government procurement and contract administration
personnel and contractor personnel.
3. DSS and DOC training programs shall be coordinated to ensure the
conduct of a comprehensive program and to minimize duplication.
This Memorandum of Understanding shall take effect August 29, 1984.
Canadian Department of Supply and Services
Peter Smith,
Assistant Deputy Minister, Operations
Date: June 26, 1984.
U.S. Department of Commerce
Walter J. Olson,
Deputy Assistant Secretary, Export Administration
Date: June 21, 1984.
35 Services and trade equipment -- except:
3510 Laundry and dry cleaning equipment
3520 Shoe repairing equipment
3530 Industrial sewing machines and mobile textile repair shoes
3540 Wrapping and packaging machinery
71* Furniture
72* Household and commercial furnishings and appliances -- except:
7240 Household and commercial utility containers
73* Food preparation and serving equipment -- except:
7310 Food cooking, baking and serving equipment
7320 Kitchen equipment and appliances
7360 Sets, kits, and outfits: food preparation and serving
74 Office machines, visible record equipment, and data processing
equipment**
75* Office supplies and devices
77* Musical instruments, phonographs and home-type radios
78* Recreational and athletic equipment
79 Cleaning equipment and supplies
85* Toiletries
871 Agricultural supplies
89 Subsistence
91*1 Fuels, lubricants, oils, and waxes -- except:
9135 Liquid propellant fuels and oxidizers, chemical base
9150 Oils and greases: cutting, lubricating, and hydraulic
9160 Miscellaneous waxes, oils and fats
94* Non-metallic crude materials -- except:
9420 Fibers: vegetable, animal and synthetic
99* Miscellaneous
7630 Newspapers and periodicals
7660 Sheet and book music
8325 Fur materials
8425 Underwear and nightwear, women's
9610 Ores
*DOC will consider requests for special priority rating authorization
in the procurement of these items.
**This Group does not include general purpose automatic data
processing equipment, software, supplies and support equipment (see
Group 70).
1Only those items subject to DOC authority as delegated by E.O.
10480.